Date: 01-11-2019
Business: Adv. D\''mello for plaintiff present.
Adv. Tahir Parnade for defendant No.1 present.
Adv. Motghare for defendant No.2 present.
He tendered register NM No.3823/2019.
Say given by the advocate for plaintiff to the NM.
Heard both sides.
ORDER PASSED BELOW NOTICE OF MOTION NO.3823/2019
Perused notice of motion, affidavit in support of it, reply of plaintiff. Heard respective counsel for parties.
Notice of Motion is taken out by defendant No.2 to condone delay caused in filing written statement and to take the same on record. It is the contention of defendant No.2 that, plaintiff has supplied copy of plaintiff on 16.08.2019 and therefore he came with written statement on fix date i.e. 30.09.2019. However, due to lack of knowledge he has not taken out notice of motion for filing the same and because of which delay has been caused which is not intentional and deliberate. Accordingly, he has made prayer in above terms.
Plaintiff objected to notice of motion, submitted that she leave it to the Court and further contended that in case if it is allowed then costs be imposed.
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.
On perusal of roznama it is apparent that defendant No.2 appeared through his advocate on 03.04.2019. But copy of amended plaint has been served upon defendant No.2 on 16.08.2019. Keeping in view above facts and that, delay caused is not inordinate and deliberate, in the interest of justice and fair trial I am inclined to condone the delay caused in filing written statement by defendant No.2. Further, defendant No.2 has annexed written statement to draft notice of motion which shows bona fide on his part and that, he does not want to delay the matter. Therefore, too, it is just to allow draft notice of motion subject to payment of certain costs. Hence, pass following order
ORDER
1.Notice of Motion No.3823 of 2019 is allowed and made absolute in terms of prayer clause (a) subject to payment of costs of Rs.1000/- (Rupees one thousand only) to plaintiff within period of one week from the date of this order.
Defendant No.2 is at liberty to deposit costs payable to plaintiff in the Court.
2. On payment of costs written statement of defendant No.2 be taken on record and marked exhibit.
3. Accordingly, notice of motion is disposed off.
Defendant No.2 paid the costs to advocate for plaintiff.
Advocate for plaintiff received the costs on behalf of plaintiff.
Exh.4 Written statement filed by defendant No.2
Advocate for defendant No.1 sought time to file reply to notice of motion No.2267/2019 Time is granted as last chance to file reply.
Adjourned for NM reply to 25.11.2019
Nature Of Disposal: ALLOWED
Disposal Date: 01-11-2019