Date: 03-10-2019
Business: Adv. Pathak for Plaintiff present.
Adv. Sharma for defendant no 1 present.
Defendant no 1 present.
Son of defendant no 2 present.
He tendered register NM 3477/19 t.o.r.
Adv. for defendant no 1 filed reply to NM
Copy of reply given to defendant no 2.
Adv. for plaintiff sought time to file say to the NM on 3477/19.
Adjd. to 2.11.2019 for reply to NM 3477/19 and hearing of other NM
Next Purpose: NOTICE OF MOTION
Next Hearing Date: 02-11-2019
Date: 02-11-2019
Business: Adv. Shukla for plaintiff present.
Adv. Devendra Sharma for defendant no 1 present.
Adv. Tiwari for defendant no 2 present.
Reply filed by advocate for plaintiff to NM no 3477/19 on motion itself.
ORDER PASSED BELOW NOTICE OF MOTION NO.242 of 2018
Learned advocate for plaintiff submitted that plaintiff has been dispossessed from suit premises after passing of order dated 18.01.2018 so he has taken out Contempt Notice of Motion No.4017 of 2018 and present notice of motion has become infructuous.
As per plaintiff\''s own submission present notice of motion has become infructuous as he is no more in possession of suit premises so notice of motion No.242 of 2018 is filed and disposed off accordingly.
Matter is adjourned for hearing on notice of motion Nos.4017/2018 and 3477/2019 to 18.11.2019.
Next Purpose: HEARING
Next Hearing Date: 18-11-2019
Date: 18-11-2019
Business: Adv. Shukla for plaintiff present.
Adv. Devendra Shukla for defendant no 1 present.
Adv. Tiwari for defendant no 2 present.
As court is busy in other matters, adjd to 12.12.2019 for hearing.
Next Purpose: HEARING
Next Hearing Date: 12-12-2019
Date: 12-12-2019
Business: Adv. Pathak for plaintiff present.
Adv.Devendra Sharma for defendant no. 1 present.
NM no 3477 of 2019 is for hearing.
This motion is taken out by defendant no 2.
Neither defendant no 2 nor his advocate are present. This is first date of hearing of motion.
Therefore, in the interest of justice matter is adjourned as last chance for NM hearing in default for order.
Adjourned to 20.01.2020 for hearing.
Next Purpose: HEARING
Next Hearing Date: 20-01-2020
Date: 20-01-2020
Business: None present for plaintiff.
Adv. Devendra Sharma for defendant No.1 present.
Adv.Tiwari for defendant No. 2 present.
Adv. for defendant No. 2 filed rejoinder t.o.r.
Heard adv. for defendant No. 2 and defendant No. 1 on NM 3477/19
Adv. for plaintiff absent hence NM 3477/19 is proceeded further and posted for NM order to 23.01.2020
Next Purpose: NM ORDERS
Next Hearing Date: 23-01-2020
Date: 23-01-2020
Business: Adv. Pathak for plaintiff present.
Plaintiff present.
KB
LO
Order passed below Notice of Motion No.3477 of 2019
Perused notice of motion, affidavit in support of it, reply of plaintiff and defendant No.1, roznama of proceeding. Heard learned counsel for defendant No.1 and 2. None appeared for plaintiff at the time of hearing.
Notice of motion is taken out by defendant No.2 thorugh his C.A. for condoning delay caused in filing written statement and to take the same on record.
It is the contention of defendant No.2 that writ of summons was served upon him on 23.01.2018 but he did not approach to his advocate as there was no cause of action against him. But, he is not well conversant with the court proceedings. Somewhere in the month of April, 2019 he approached to the advocate to advise him that he has to file written statement within prescribed period. Therefore, he has engaged said advocate and going through papers and proceeding he advocate demanded papers pertaining to the present case. Considerable time has been consumed in finding out aforesaid documents and collecting the details thereof. Thereafter, he has given entire details and documents pertaining to the matter to his advocate who drafted written statement to be filed before this Court. In these set of facts delay has been caused in filing written statement. Accordingly, he prayed in above terms.
Plaintiff filed his say through advocate on notice of motion itself and leave it to the decision of this Court.
Defendant No.1 strongly opposed notice of motion. It is contended that delay caused is not explained properly. Plaintiff and defendant No.2 are in collusion to defeat his rights has taken out present notice of motion to as a counter blast to his defence. In the set of facts, defendant No.1 prayed for dismissal of notice of motion
Before adverting to the facts I would like to mention that it is a settled law that Order VIII 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 this legal position, now, I consider notice of motion.
It is pertinent to note that plaintiff has not seriously resisted present notice of motion. May it be so, it seem that defendant No.2 appeared through his advocate in present matter on 28.01.2019. No doubt, there are lapses on his part that in-spite service of writ of summons he did not engage advocate in the present matter and file written statement within prescribed period. However, considering the reasons assigned by defendant No.2 in the facts of matter it is unjust to deprive him from contesting the matter on merits. Therefore, in the interest of justice and fair trial I am inclined to allow present notice of motion subject to imposition of costs upon him. Hence, pass following order-
ORDER
1. Notice of Motion No.3477 of 2019 is allowed and made absolute in terms of prayer clauses (a) and (b) subject to payment of costs of Rs.5000/- (Rupees Five Thousand only) to D.L.S.A., Mumbai within period of two weeks from the date of this order.
2. After payment of costs, written statement of defendant No. 2 be taken on record and marked exhibit.
3. Accordingly, notice of motion is disposed off.
Adjourned for direction to 15.02.2020.
Nature Of Disposal: ALLOWED
Disposal Date: 23-01-2020