Final Order 1

Order Details: Other
Pdf Text: 4.10.2019
SU 2582/17
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
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.
Judge
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