Date: 04-12-2019
Business: Plaintiff and Adv. Absent.
Adv. Kavita for defendant present.
She tendered registered NM no 4195/19
Adjourned for NM reply to 8.01.2020
Next Purpose: REPLY
Next Hearing Date: 08-01-2020
Date: 08-01-2020
Business: Adv. P.S.Tiwari for plaintiff present.
Adv. Kavita Shah for defendant present.
Adv. for plaintiff sought time to file reply to NM 4195/19.
O - Time is granted.
Adjourned for NM reply to 29.01.2020.
Next Purpose: REPLY
Next Hearing Date: 29-01-2020
Date: 29-01-2020
Business: Adv. Reshmi Parab for plaintiff present.
Adv. Thapa for defendant present.
KB
LO
Adv. Kavita Shah for defendant present.
Plaintiff did not file reply to NM No.4195 of 2019. In the interest of justice matter is adjourned and posted for NM reply and hearing.
Adjourned to 31.01.2020
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 31-01-2020
Date: 31-01-2020
Business: Adv. P. S. Tiwari for plaintiff present.
Adv. Kavita Shah for defendants present.
Say filed by plaintiff on NM No.4195 of 2019
Heard argument of both sides on notice of motion.
Order passed below notice of motion No.4195 of 2019
Perused notice of motion, affidavit in support of it, reply of plaintiff and roznama of proceeding. Heard respective counsel for parties.
Present notice of motion is taken out by the defendants to condone delay caused in filing written statement and to take the same record.
It the contention of defendants that although they appeared in the matter and contested notice of motion No.3608 of 2018 filed by plaintiff but writ of summons was not served upon them till date. It is contended that they were engaged in contesting said notice of motion and it seems that in said contest written statement remained to be filed by them on record. It is further contended that they have excellent case on merits. Delay caused is not intentional. Accordingly, they prayed in above terms.
Plaintiff objected to notice of motion by filing reply on it and contended that defendants have not given just and sufficient reason for condonation of delay. Accordingly, prayed to dismiss present notice of motion.
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 seems that as defendants initially engaged in contesting ad-interim relief granted in favour of plaintiff in Notice of Motion No.3608 of 2018 and thereafter said notice of motion on merits, so, written statement on their behalf remained to be filed. Defendants have shown their bona-fide by annexing written statement which indicate that they do not want to protract the progress of present matter. Certainly, there are lapses on part of defendants, however, in the facts of matter it is unjust to deprive defendants from contesting the matter on merits. Therefore, in the interest of justice and fair trial I am inclined to allow present notice of motion by imposing certain costs upon defendants. Hence, pass following order
ORDER
1. Notice of Motion No.4195 of 2019 is allowed and made absolute in terms of prayer clause (a) subject to payment of costs of Rs.5000/- (Rupees Five Thousand only) to the plaintiff within period of two weeks from the date of this order.
Defendants are at liberty to deposit the costs payable to the plaintiff in the Court.
2. After payment of costs, written statement of defendants be taken on record and marked exhibit.
3. Accordingly, notice of motion is disposed off.
Adjourned for Direction to 24.02.2020
Nature Of Disposal: ALLOWED
Disposal Date: 31-01-2020