Final Order 1

Order Details: Other
Pdf Text: 15.11.2019
SU 1184/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Advocate Mr. Joshi for plaintiff present.
Advocate Mr. Devang Parmar for defendant nos.1 and 2 present and filed registered NM
No.4003/19. T.O.R.
copy is served upon plaintiff.
Say filed by advocate for plaintiff to NM No.4003 of 2019
Heard counsel for parties.
ORDER PASSED BELOW NOTICE OF MOTION NO.4003 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 Nos.1 and 2 for condoning delay caused in
filing written statement and to take the same on record.
It is contended that writ of summons was served upon them on 20.07.2019 and they
appeared on 30.08.2019. Case was adjourned to 05.10.2019 for filing their written
statement. It is contended that for filing their written statement they were directed by their
advocate to collect various documents. Those documents were quite old and it took some
time for collection of documents and after that written statement was prepared and tendered
in the Court on 05.10.2019 but 30 days time has already been elapsed so they were directed
to take appropriate proceeding. Accordingly, they filed present notice of motion making
prayer in above terms.
Plaintiff opposed notice of motion on the ground that it is clear from roznama dated
05.10.2019 that defendant Nos.1 and 2 have tendered written statement on 05.10.2019. But
it was not taken on record and marked exhibit as same was not filed within prescribed
period of 30 days from the date of service of writ of summons.
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.
Conduct of defendants in tendering written statement on 05.10.2019 itself show their
bonafide and that they do not want to delay prosecution of the matter. Reason assigned by
them is sufficient to condone the delay caused in filing of written statement. It cannot be
said that delay caused is deliberate and inordinate. Therefore, in the interest of justice,
equity and fair trial I am inclined to condone the delay caused in filing written statement.
Hence, pass following order.
ORDER
1. Notice of Motion No.4003 of 2019 is allowed and made absolute in terms of prayer
clauses (a) and (b).
2. Written statement filed by defendant Nos.1 and 2 be taken on record and marked
exhibit.
3. Accordingly, notice of motion is disposed off.
….............
Exh.4 : Written statement of defendant Nos.1 and 2
Copy be served upon plaintiff.
Adjourned for reply to notice of motion to 04.12.2019
Judge
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