Final Order 1

Order Details: Other
Pdf Text: 30.09.2019
SU 310/15
NM 4975/15
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. N.H. Naik for Plaintiff present.
Adv. Athavale for defendant Nos.2 and 4 present.
Adv. S.V. Desai for defendant No.5 present and tendered original Notice of Motion
No.3641 of 2019.
KB
LO
Adv. Tanvi Mehata for defendant Nos.1 and 3 present.
Say filed by plaintiff on NM No.3641 of 2019
Heard both sides.
ORDER PASSED BELOW NOTICE OF MOITON NO.3641/2019
Read notice of motion, affidavit in support of it, reply of plaintiff. Heard respective
counsel for parties.
Defendant No.5 Society have taken out present notice of motion to condone delay
caused in filing written statement and to take the same on record. They assigned reason that,
new Managing Committee was elected in the year 2016. Said new Committee was not
aware about the present suit, nor they having paper of present suit. They came to know
about the suit after receipt of notice on 24.07.2018. They contended that they required time
to collect documents for drafting written statement and matter was referred for settlement
through mediation but it could not be settled. In above set of facts they prayed to allow
notice of motion in above term.
Plaintiff opposed notice of motion on the ground that defendant No.5 being registered
Society is aware about legal consequences of not filing written statement after receipt of
summons and prayed for dismissal of notice of motion.
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
present notice of motion.
No doubt there are latches on the part of defendant No.5 in taking out present notice of
motion. But, defendant No.5 being registered Society should not suffer for the latches on the
part of their Managing Committee. In the interest of justice and fair trial it is unjust to
deprive defendant No.5 an opportunity to contest suit on merits. Therefore, I am inclined to
allow present notice of motion. However, considering conduct of Managing Committee of
defendant No.5 it is necessary to impose certain costs upon defendant No.5. Hence, pass
following order.
ORDER
1. Notice of Motion No.3641 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
plaintiff within period of two weeks from the date of this order.
Defendant No.5 is at liberty to deposit costs payable to plaintiff in the Court.
2. On payment of costs, written statement of defendant No.5 be taken on record and
marked exhibit.
3. Accordingly, notice of motion is disposed off.
Adjd for direction to 18.10.2019
Judge
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