Final Order 1

Order Details: Notice of Motion
Pdf Text: Adv. Tejani for plaintiff present.
Adv. Choudhary for defendant nos. 1, 2, 10, 12 and 13 present.
The Ld. Counsel for the defendant nos. 12 and 13 tendered registered NM No. 3315/19.
Plaintiff filed reply to NM no. 3315/19.
Application filed on behalf of defendant nos. 12 and 13 for sat aside the order of keeping the NM
for dismissal.
O-Read application. Heard. In the interest of justice the order of dismissal is called back.
Heard argument of Ld. Advocate for plaintiff and defendant nos. 1, 2, 10, 12 and 13 on NM no.
3315/2019
Order below Notice of Motion No. 3315/19
The present Notice of Motion is tendered by the defendant nos. 12 and 13 inter-alia for the relief of
setting aside the ex-parte order dated 23.7.2018 and condoning the delay of 411 days for filing
written statement. The Ld. counsel for the defendant nos. 12 and 13 submitted that the the
defendant nos. 12 and 13 permanently resided at Goa. Defendant nos. 12 and 13, after receipt of
writ of summons, due to unavoidable circumstances did not file the written statement. The
defendant no. 12 is 62 years old and suffering from abscess of left leg and was operated. He was
advised for the rest of 1 month. Similarly defendant no. 13 is 65 years old and suffering from
diabetes and hyper tension and he was advised by doctor to take rest. Defendant nos. 12 and 13
contacted defendant no. 10 and decided to contest the matter. The advocate of defendant nos. 12
and 13 advised them not to appear in the matter. They submitted that for the above said reasons
defendant nos. 12 and 13 could not appear in the matter.
The Notice of Motion is opposed by the plaintiff on the count that the defendant no. 10 who
is the Attorney of defendant nos. 12 and 13 is 76 years old and when he could attend the matter then
there was no impediment for these defendants to appear. The Ld. advocate for the plaintiff further
submitted that the defendant nos. 12 and 13 deliberately did not appear in the matter. The medical
certificate is not annexed. Hence sufficient cause is not made. She would submit that the plaintiff
has moved contempt Notice of Motion and thereafter these defendants appeared in the matter. She
further submitted that the same advocate represented defendant nos. 1, 2 and 10.
On perusal of the record it appears that the writ of summons was unclaimed by defendant no.
12. It is now settled law that when there is a postal endorsement to the effect unclaimed, it cannot
be good service under law. Defendant no. 13 was duly served in the matter. It is contention of the
defendant nos. 12 and 13 that due to their health reason and the advise given by their advocate, they
did not appear in the matter. The medical certificate of defendant no .12 is filed to substantiate the
contention of his ailment. The matter is at the preliminary stage. The Notice of Motions are
pending for hearing. At this stage it appears that by exparte order substantial rights of the plaintiff
are not taken away. It would be in the interest of the parties if the matter is decided on merit. No
prejudice would be caused to the plaintiff. Even hyper technical and pedantic approach should not
be adopted in dealing with such type of applications. Hence it is expedient to pass following order.
ORDER
1. Notice of Motion No. 3315/19 is made absolute in terms of prayer clause (a) and (b) subject to
costs of Rs. 5,000/- to be paid to the plaintiff within a period of one month from today.
2. The payment of costs is subject precedent.
3. On payment of costs, written statement be taken on record.
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