Final Order 1

Order Details: Other
Pdf Text: 7.11.2019
SU 1839/18
NM 2960/18
NM 3498/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Plaintiff and defendant present.
Adv. Shahin Sayyed for defendant present.
KB
LO
Adv. Vijay Dubey for plaintiff present.
Heard both sides.
ORDER PASSED BELOW NOTICE OF MOTION NO.3498 OF 2019
Perused notice of motion, affidavit in support of it, reply of plaintiff. Heard
respective counsel for parties.
Notice of motion is taken out by defendant to condone delay caused in filing written
statement. It is contended that writ of summons was served upon him on 30.07.2018.
Thereafter, he approached to the plaintiff and inquired with him about the present case.
But, plaintiff threatened him. He did not want to have dispute with his elder brother. It
is further contended that when he was restrained by the plaintiff to enter into suit
premises his entire articles, cupboards were lying there and he was not allowed to take
away those documents. He was unable to hand over document to his advocate in order
to draft written statement. On 10th June, 2019 wife of plaintiff allowed him to take the
papers from cupboard and he got some papers but some papers were misplaced and are
not traceable. In above circumstance written statement could not be prepared and delay
has been caused in filing of the same. Accordingly, he prayed in above terms.
Plaintiff has opposed notice of motion by filing reply and contended that defendant
has failed to make out case for condoning delay. Reason assigned is not just and
reasonable and accordingly, he 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 seems that delay has been caused on the part of defendant because of
unavailability of documents with him for the purpose of drafting written statement. No
doubt, he has not specifically mentioned as to which documents were not available with
him. It is clear the latches on the part of defendant but merely on that count it is unjust
to throw out present notice of motion. In the interest of justice and fair trial it is
desirable to give an opportunity to defendant to contest the matter on merits. Therefore,
I am inclined to allow present notice of motion subject to payment of costs to the
plaintiff. Hence, pass following order.
ORDER
1. Notice of Motion No.3498 of 2019 is allowed and made absolute in terms of prayer
clause (a) subject to payment of costs of Rs.3000/ (Rupees Three Thousand only) to
the plaintiff within period of one week from the date of this order.
Defendant is at liberty to deposit costs payable to the plaintiff in the Court.
2. On payment of costs; written statement of defendant be taken on record and marked
exhibit.
3. Accordingly, notice of motion is disposed off.
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Earlier order to continue till next date
Adjourned for hearing on NM No.2960/18 to 26.11.2019
Judge
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