Date: 04-10-2019
Business: Adv. H.P. Pandey for Plaintiff present.
Adv. Avanendra Kumar for defendant present.
Plaintiff and defendant present.
KB
LO
Draft notice of motion filed by adv. For plaintiff. t.o.r.
O- Leave granted to register it.
Say filed by advocate for plaintiff to draft notice of motion.
Heard both sides.
ORDER PASSED BELOW DRAFT NOTICE OF MOTION
Read draft notice of motion, affidavit in support of it and reply filed by plaintiff. Heard respective counsel for parties.
Draft notice of motion is taken out by the defendant to condone delay caused in filing written statement on record, to set aside order dated 04.07.2019 of NO WS and to take written statement on record.
It is contended that due to illness defendant is residing at Uttar Pradesh and doctor has advised him not to travel. So, he was not available for affirmation of written statement. When he returned to Mumbai on 25.09.2019 he contacted his advocate to file written statement. Accordingly, present notice of motion has been taken out making prayers in above terms.
Plaintiff has objected to notice of motion on the count that defendant has not given any proper explanation for the delay caused in filing written statement.
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.
Defendant has filed copy of the status of online train ticket which shows that defendant came to Mumbai on 15.09.2019. He has not filed medical certificate in support of notice of motion. However, I am inclined to consider his statement on oath about his illness. Considering reason assigned in the interest of justice and fair trial I am of the view that it is unjust to deprive defendant an opportunity to contest the suit on merits. In the facts of the matter I am inclined to allow draft notice of motion subject to payment of certain costs to plaintiff.
ORDER
1. Draft Notice of Motion is allowed and made absolute in terms of prayer clauses (a) and (b) 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 is at liberty to deposit costs payable to plaintiff in Court.
2. After payment of costs by defendant, his written statement be taken on record and marked exhibit.
3. Draft notice of motion be registered for statistical purpose.
4. Accordingly, draft notice of motion is disposed off.
Adjd. for direction to 08.11.2019.
Nature Of Disposal: ALLOWED
Disposal Date: 04-10-2019