Final Order 1

Order Details: Other
Pdf Text: 17.10.2019
SU 1595/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
By preceipy.
Adv. K.R. Tiwari for plaintiff present.
Adv. Bhushan Vardhaman for defendant present.
Defendant tendered draft Notice of motion.
O – leave is granted to register it.
Copy is served upon plaintiff.
Reply filed by advocate for plaintiff on draft notice of motion.
ORDER PASSED BELOW DRAFT NOTICE OF MOTION
Read draft notice of motion, affidavit in support of it, reply of plaintiff and
roznamas in the proceeding. Heard respective counsel for parties.
Draft notice of motion is taken out by defendants to condone delay caused in filing
written statement and to take the same on record and to treat the same as reply to
notice of motion filed by plaintiff.
It is the contention of defendants that they were in search of documents for the
purpose of drafting written statement and meantime, they also attended wedding
function of their close relatives at native place because of which they could not give
instructions to their advocate to file written statement within prescribed time.
Accordingly, they prayed in above terms.
Plaintiff filed reply and opposed notice of motion and prayed to impose heavy costs
upon the defendants.
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 clear from the reason assigned by defendants that in collection of
documents which are required for drafting written statement time has passed and so
also because of their engagement in the marriage ceremony of their relative they could
not give necessary instruction to their advocate to draft written statement within
prescribed time. Reason assigned by them is sufficient to condone the delay caused.
More so, delay caused cannot be said to be inordinate and deliberate. Further they
have shown their bona fide by annexing written statement along with present notice of
motion. In the facts of matter, in the interest of justice I am inclined to allow present
draft notice of motion with certain costs. Hence, pass following order.
ORDER
1. Draft notice of motion is allowed and made absolute in terms of prayer clauses
(a) and (b) subject to payment of costs of Rs.1000/ (Rupees one thousand only) to
the plaintiff within period of three weeks from the date of this order.
Defendants are at liberty to deposit costs payable to plaintiff in the Court.
2. After payment of costs written statement of defendants 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.
….................
Costs paid by defendants to plaintiff.
Exh.3 Written statement filed by defendants – TOR
In view of above order, written statement is also treated as reply to notice of motion
Adjourned for NM hearing to 14.11.2019
Judge
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