Final Order 1

Order Details: Other
Pdf Text: 23.01.2020
SU 1527/16
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. Electricwala for defendant Nos.1 to 3 present.
Order passed below Notice of Motion No.4308 of 2019
Perused notice of motion, affidavit in support of it, reply of
plaintiff on notice of motion itself and roznama of proceeding.
Heard respective counsel for parties.
Notice of motion is taken out by the defendant Nos.1 to 3
for setting aside order 19.07.2019 in respect of proceeding of
suit without their written statement, condonation delay caused
in filing written statement and to take the same on record and
also for reliefs deem fit and proper.
It is the contention of defendant Nos.1 to 3 that writ of
summons was issued to them on 22.05.2018 and delivered
upon them on 29.05.2018. Thereafter, defendants engaged the
advocate so as to advise them and appear in the present matter.
They have been vigilant and diligent in wanting to defend
present case. The delay caused is attributable to their advocate
who did not represent them to the best of his ability. Therefore,
they engaged new advocate to represent them and want to file
written statement. They have substantial and valid defence in
relation to the claims made by the plaintiff. They will also raise
triable issue. In the set of facts they prayed in above terms.
Plaintiff opposed notice of motion on the count that there
is delay of 445 days and notice of motion is not maintainable
and liable to be dismissed. Accordingly, made prayer in that
regard.
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 that writ of summons was ordered to be served
upon defendant Nos.1 to 3 at their new address in pursuance of
order dated 22.03.2018. These defendants appeared before the
Court on 12.06.2018 through their Adv. Neel Gala. They
attributed delay caused in filing of written statement to their
earlier advocate and claimed that he has not advised them in
that respect. For the fault of any on the part of advocate of the
parties, parties should not suffer. These defendants have shown
their bonafide by annexing written statement to present notice
of motion. Thus, it is clear that they do not want to protract the
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trial of the mater. Therefore, in the fact of matter condoning
delay cased in taking out present notice of motion to advance
justice and in the interest of justice and fair trial I am inclined
to allow present notice of motion subject to imposition of costs
upon defendant Nos.1 to 3. Hence, pass following order:
ORDER
1. Notice of Motion No.4308 of 2019 is allowed and made
absolute in terms of prayer clauses (a) to (c) 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.
Defendant Nos.1 to 3 are at liberty to deposit the costs
payable to the plaintiff in the Court.
2. After payment of costs, written statement of defendant
Nos.1 to 3 be taken on record and marked as exhibit.
3. Accordingly, notice of motion is disposed off.
Adjourned for direction to 07.02.2020.
Judge
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