Date: 09-10-2019
Business: Adv. S. V. Shinde for plaintiff present.
Adv. Rajapurkar for defendant No.4 present and tendered draft notice of motion.
O- Leave is granted to register it.
Adv. Ashish Dubey appeared for defendant No.1 and filed V/N t.o.r. and marked as Exh.3.
Adv. Ashish Dubey also appeared for defendant No.1 an undertake to filed V/n on behalf of defendant No.2
KB
Copy of draft notice of motion is served on other side.
Reply filed by plaintiff on draft notice of motion itself.
Advocate for plaintiff tendered original Notice of Motion No.2724 of 2019 and joint affidavit of service.
Heard both sides on draft notice of motion.
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 No.4 to condone delay caused in filing written statement. It is contended that delay was caused as defendant No.4 was out of India owing to her occupational requirement and was not available to affirm written statement and delay has been caused in filing her written statement. Accordingly, she made prayer in above terms.
Plaintiff has left it to the discretion of Court and requested to impose costs in case notice of motion is allowed.
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 No.4 has given reason that she was out of India owing to her occupational requirement and was not available to affirm written statement and delay has been caused in filing her written statement.. Reason assigned by her 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 No.4 has shown her 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 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 payment of costs of Rs.1000/- to plaintiff within period of one week from the date of this order.
Defendant is at liberty to deposit costs payable to plaintiff in the Court.
2. On payment of costs written statement of defendant No.4 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.
Defendant No.4 paid costs to plaintiff.
Exh.4 Written statement filed by defendant No.4.
Copy is given to other side.
Adjd. For NM reply of rest of defendants to 08.11.2019.
Nature Of Disposal: ALLOWED
Disposal Date: 09-10-2019