Final Order 1

Order Details: Other
Pdf Text: 31.01.2020
SU 2204/18
NM
4195/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
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
adinterim 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 bonafide 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
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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
Judge
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