Final Order 1

Order Details: Other
Pdf Text: 17.09.2019
SU 513/19
@ NM
2798/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. Mahit Sant for plaintiff present.
Adv. Prashant Dingrani for defendant No.1 present and tendered draft NM. O Leave is granted to
register it.
Copy is served on other side.
Plaintiff filed reply.
Heard both sides on draft notice of motion.
Order below draft notice of motion.
Defendant No.1 has taken out draft notice of motion to condone delay caused in filing written
statement and to take the same on record.
Plaintiff opposed draft notice of motion on the ground that no sufficient reason has been
assigned by defendant No.1 to condone delay.
Perused draft notice of motion, affidavit in support of it and reply of plaintiff. Heard learned
counsel for parties.
Learned advocate for defendant No.1 during course of argument submitted that authorized
signatory of defendant No.1 was not available within period of 30 days so written statement could
not be filed within prescribed period and prayed to allow draft notice of motion.
Advocate for plaintiff vehemently opposed draft notice of motion.
Before dealing with draft notice of motion it is necessary to mention legal position in relation
to proviso to Order VIII Rule 1 of CPC. It is a settled law that Order 8 Rule 1 of CPC is not
mandatory and in specific circumstances written statement can be accepted with reasons. It is also
held that in an adversarial system, no party should be denied an opportunity in participation of the
justice dispensation system (Salem Bar Association V/s Union of India 2003 AIR SCC 189 and
Zolba V/s Keshav 2008 AIR SCC 2099). In view of above legal position now I consider draft
notice of motion.
It is apparent from roznama dated 03.08.2019 that advocate for defendant No.1 made request
to take written statement of defendant No.1 on record but it was not taken on record as it was not
tendered within 30 days from date of service of writ of summons i.e. 07.06.2019 and liberty was
granted to defendant No.1 to take appropriate proceedings for the purpose of taking written
statement on record. It seems that now defendant No.1 in view of that liberty taken out present
notice of motion. Certainly, conduct of defendant No.1 cannot be said as deliberate and to cause
delay in prosecution of matter. More so, delay caused is not inordinate. Considering above facts
and oral submission of advocate for defendant No.1 about the reason of delay caused in filing
written statement I am inclined to allow draft notice of motion. Therefore, in the interest of justice
and fair trial draft notice of motion deserves to be allowed. However, considering the facts of
matter certain costs is required to be imposed upon defendant No.1. Hence, pass following order:
ORDER
1. Draft notice of motion is allowed and made absolute in terms of prayer clauses (a) & (b) subject
to payment of costs of Rs.1000/ (Rupees one thousand) to plaintiff within period of one week
from the date of this order.
Defendant No.1 is at liberty to deposit costs of Rs.1000/ payable to plaintiff in the Court.
2. After payment of costs; written statement of Defendant No.1 be taken on record and marked
exhibit.
3. Draft notice of motion be registered for statistical purposed.
4. Accordingly, draft notice of motion is disposed off.
…...
Advocate for defendant No.1 paid costs of Rs.1000/ to advocate for plaintiff.
Written statement filed by defendant No.1 is taken on record and marked exhibit as
Exh.5 – Written statement filed by defendant No.1
Plaintiff is directed to take steps to serve writ of summons and draft notice of motion upon
defendant No.2.
Plaintiff is also directed to get register draft notice of motion.
Adjd for steps and compliance to 16.10.2019
Judge
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