Final Order 1

Order Details: Other
Pdf Text: 23.01.2020
SU 92/18
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. Pathak for plaintiff present.
Plaintiff present.
KB
LO
Order passed below Notice of Motion No.3447 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.
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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 inspite 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.3447 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.
Judge
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