Final Order 1

Order Details: Other
Pdf Text: 9.10.2019
SU 2408/18
Exh.4
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. Arun Rajput for plaintiff present.
Adv. Lad for defendant present.
KB
Copy of draft notice of motion is served on plaintiff.
Plaintiff filed reply on draft notice of motion itself.
Heard both sides.
ORDER PASSED BELOW DRAFT NOTICE OF MOTION
Perused draft notice of motion, affidavit in support of it and reply of
plaintiff. Heard respective counsel for parties.
Draft notice of motion is taken out by defendant to condone delay caused in
filing written statement and to take the written statement on record. It is
contended that delay was caused as defendant was not keeping well and because
of which he was not available so could not file written statement within
prescribed period and delay of 09 days has been caused in filing his written
statement. Accordingly, he made prayer in above terms.
Plaintiff has objected to notice of motion on the count that there was sufficient
time available to defendant for filing written statement. Accordingly, he 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 notice of motion.
Defendant has given reason that he was not keeping well and because of
which he was not available so could not file written statement within prescribed
period and delay of 09 days has been caused in filing his written statement.
Reason assigned by him is sufficient to condone delay caused in filing written
statement. Delay caused is not inordinate and it cannot be termed as deliberate.
More so, defendant has shown his 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 in the interest of justice and fair trial. Hence, passing
following order :
ORDER
1. Draft notice of motion is allowed and made absolute in terms of prayer
clause (a)
2. Written statement of defendant 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.
….....
Exh.4 Written statement filed by defendant.
Copy is given to other side.
Advocate for plaintiff sought extension of time to get register draft notice of
motion – Time is extended for four weeks from today.
Pursis filed by advocate for defendant adopting the written statement as reply to
notice of motion TOR
Adjd. for NM hearing to 14.11.2019
Judge
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