Final Order 1

Order Details: Other
Pdf Text: 13.11.2019
SU 1955/18
@ NM
2922/18 &
3793/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. Darshan Jain for plaintiff present
Adv. Kajal Chourasia for defendant present.
KB
LO
Defendant filed reply to NM No.2922/18.
Plaintiff filed reply to NM No.3793 of 2019 itself.
Heard both sides.
ORDER PASSED BELOW NOTICE OF MOTION NO.3793 OF 2019
Perused notice of motion, affidavit in support of it and reply of plaintiff. Heard respective
counsel for parties.
Notice of motion is taken out by defendant to condone the delay caused in filing of written
statement and to take the same on record.
It is the contention of defendant that copy of writ of summons served upon him was not
traceable with him so he was under impression that same was not served upon him. Therefore,
his advocate made application for certified copy of entire roznama of present suit on 03.10.2019
to ascertain the date of service of writ of summons and it revealed that writ of summons served
upon defendant on 04.07.2019. Written statement has been affirmed on 21.09.2019. But delay
has been caused of 7 days beyond period of 90 days. It is further contended that delay caused is
not intentional. Defendant has very good case on merits. Accordingly, he prayed in above terms.
Plaintiff opposed notice of motion on the count that there is delay of 56 days and no
specific reason assigned by the defendant to condone the delay and notice of motion is taken out
with malafide intention. Accordingly, plaintiff prayed for dismissal of notice of motion.
Before adverting to the facts I would like to mention that 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.
It is true that writ of summons has been served upon defendant on 04.07.2019 but he failed
to file written statement within prescribed period. During course of argument advocate for
defendant produce the written statement for my perusal. It appears that it was affirmed on
21.09.2019 i.e. within period of 90 days from the date of service of writ of summons. This
shows bonafide on the part of defendant and it also shows his intention not to delay the trial.
Considering above facts reason assigned by the defendant in the interest of justice and equity it is
appropriate to condone the delay caused in filing written statement and take the same on record
by imposing certain costs upon the defendant. Hence, pass following order.
ORDER
1. Notice of Motion No.3793 of 2019 is allowed and made absolute in terms of prayer clause
(a) subject to payment of costs of Rs.500/- (Rupees Five Hundred only) to plaintiff within period
of one week from the date of this order.
Defendant is liberty to deposit the costs payable to plaintiff in the Court.
2. On payment of costs by defendant his written statement be taken on record and marked
exhibit.
3. Accordingly, notice of motion is disposed off.
…......................
Costs paid by defendant to advocate for plaintiff who received the same on behalf of plaintiff.
Exh.4 Written statement.
Earlier order if any to continue till next date.
Adjourned for NM hearing to 03.12.2019
Judge
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