Final Order 1

Order Details: Other
Pdf Text: 9.10.2019
SU
1992/09
Ex 3
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. Clifford Martis for Plaintiff present.
Defendant no 2 present.
Adv. Arun Singh appear for defendant no 1 and 2.
Ex 3 He filed vakalatnama t.o.r.
He also filed draft notice of motion t.o.r.
O – Leave granted to register the same.
Copy is served upon plaintiffs.
Reply filed by advocate for plaintiffs to draft notice of motion.
Head both sides.
ORDER PASSED BELOW DRAFT NOTICE OF MOTION
Perused draft notice of motion, affidavit in support of it and reply of plaintiffs. Heard
respective counsel for parties.
Draft notice of motion is taken out by defendants to condone delay caused in filing
written statement and to take the same on record. It is contended that delay was caused as
defendants had taken time for retrieving old documents and collecting details of old
proceeding filed by the land owners against the plaintiffs. It is further contended that delay
caused is not deliberate and intentional. Accordingly, they made prayer in above terms.
Plaintiffs opposed notice of motion on the count that reason assigned is not plausible and
prayed to dismiss 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
notice of motion.
Defendants have given details about the previous proceedings which they have
collected and also specifically stated that they required time to collect documents and
information about the previous proceedings so they could not file written statement within
prescribed time. Reason assigned by them is sufficient to condone delay caused in filing
written statement. Delay caused is not inordinate and it cannot be termed as deliberate.
More so, defendants have shown their bona fide by annexing written statement along with
notice of motion. In above facts and circumstances I am inclined to allow draft notice of
motion with certain costs.
Hence, passing following order :
ORDER
1. Draft notice of motion is allowed and made absolute in terms of prayer clause (a)
subject to costs of Rs.1000/ (Rupees one thousand only) to plaintiff within period of one
week from the date of this order.
Defendants are at liberty to deposit costs payable to plaintiffs in the Court.
2. On payment of costs written statement of defendants 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.
….....
Costs paid by defendants to proprietor of plaintiffs.
Exh.4 Written statement of defendant.
Copy is given to other side.
Exh. 5 Counter Claim filed by the defendants t.o.r
Copy is given to other side.
Other side as to filed W/S within prescribed time.
Adjd for Direction to 16.12.2019
Judge
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