Date: 08-11-2019
Business: Adv. Kavita Ghadage for plaintiff present.
Adv. Ashish Dubey for Defendant no 1 present
Adv. Rajapurkar for defendant no 4 present.
KB
LO
Same appearance.
Draft notice of motion filed by advocate for defendant No.1
O - Leave is granted to register it.
Copy is served upon plaintiff.
Say filed by plaintiff.
Heard both sides.
ORDER PASSED BELOW DRAFT NOTICE OF MOTION
Perused draft notice of motion, affidavit in support of it and reply of plaintiff. Heard learned counsel for both parties.
Draft notice of motion is taken out by defendant No.1 to condone delay caused in filing written statement and to take the same on record. It is the contention of defendant No.1 that husband of defendant No.1 received notice but he was unwell and due to inadvertence he failed to inform about the notice. After getting knowledge of receipt of notice defendant No.1 appeared in the Court on 21.08.2019 and matter was adjourned for filing reply to 09.10.2019. In first week of October, 2019 defendant No.1 approached to her advocate and given instruction for drafting written statement. On 09.10.2019 her advocate tendered written statement but it was not taken not record as there was delay in filing of written statement. In above circumstances defendant No.1 prayed in above terms.
Plaintiff opposed notice of motion and prayed to dismiss the same.
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.
In present matter defendant No.1 appeared on 21.08.2019 but she was not represented by her advocate. Matter was adjourned to 09.10.2019 for reply and service of other defendants. From written statement annexed to draft notice of motion it is clear that defendant No.1 has affirmed it on 09.10.2019. This fact itself demonstrate that defendant No.1 does not want to protract trial. It shows bona-fide on her part. Reason assigned by her is sufficient to condone delay caused in filing written statement. More so, delay caused is not inordinate and deliberate. Therefore, in the interest of justice and fair trial I am inclined to allow 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 clause (a) subject to payment of costs of Rs.1000/- (Rupees One Thousand only) to the plaintiff within period of one week from the date of this order.
Defendant No.1 is at liberty to deposit the costs payable to plaintiff in the Court.
2. On payment of costs written statement of defendant No.1 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.
Defendant No.1 paid costs of Rs.1000/- to plaintiff.
Plaintiff has acknowledged the receipt of costs of Rs.1000/-.
Exh.5 Written statement of defendant No.1
Pursis filed by advocate for defendant No.1 adopting written statement as reply to notice of motion No.2724 of 2019 It is accepted.
Matter is adjourned for direction to 13.12.2019.
Nature Of Disposal: ALLOWED
Disposal Date: 08-11-2019