Final Order 1

Order Details: Other
Pdf Text: 1.11.2019
SU 3336/18
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
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 and 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 plaint on 16.08.2019 and therefore he came with written statement on
fixed 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 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 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 - TOR
Advocate for defendant No.1 sought time to file reply to notice of motion No.2267 of 2019 –
Time is granted as last chance to file reply.
Adjourned for NM reply to 25.11.2019
Judge
-- 1 of 2 --
-- 2 of 2 --