Date: 03-12-2019
Business: Adv. Mrs Borse for defendant present.
Adv. Pawan Tiwari for plaintiff present.
Registered NM no 4319/19 tendered by adv. for defendant. t.o.r.
Adv. for plaintiff sought time to file reply Granted.
Adjourned for NM reply to 10.01.2020
Next Purpose: REPLY
Next Hearing Date: 10-01-2020
Date: 10-01-2020
Business: Adv. Piyush Singh for plaintiff present.
He filed reply to NM 4319/19
Copy is served upon defendant.
Adv. Sushila Wadkar for defendant present.
Heard both sides.
Order passed below Notice of Motion No.4319 of 2019.
Perused notice of motion, affidavit in support of it, reply of plaintiff and roznamas of the proceeding. Heard respective counsel for parties.
Notice of motion is taken out by defendant to set aside NO WS order to condone delay caused in filing written statement and to take the same on record. It is contention of defendant that writ of summons was served upon him in June, 2018 but prior to that he has disposed off the property which he had purchased from plaintiff. Settlement talk was going on between him, plaintiff and the purchaser. At that time his signature was taken on paper which was written in English and it was told to him that he did not appear in the suit as matter is settled between the parties. Subsequently, on enquiry with his advocate he came to know that the paper on which his signature was obtained was misused by the plaintiff and posted to the Court as his written statement. Thus fraud has been played upon him. Said writing was neither verified nor supported by affidavit so it is not written statement in the eyes of law. It is further contended that during the relevant period he had to collect various documents relating to suit property so as to enable his Advocate on record to draft written statement. Certain time was required to get material documents therefore, he could not file his written statement within prescribed time. Accordingly, he made prayer in above terms.
Plaintiff opposed present notice of motion by filing reply on the count that no sufficient cause is shown for not filing written statement within prescribed period. Reason assigned by the defendant cannot be considered for condoning delay caused in filing written statement. Accordingly, he prayed for dismissal of 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.
In present matter defendant appeared through his Advocate on 22.10.2018 but did not take out proceeding to take his written statement on record although writ of summons was served upon him in June-2018. No doubt Roznama dtd. 20.12.2018 shows that one written statement was forwarded through post to the Court but it was not verified and supported by affidavit so defendant was directed to make compliance as per O 6 Rule 15 of CPC. He admitted his signature on said written statement when he was confronted on 10.04.2019 but he did not comply order dated 20.12.2018. Now defendant has come with the case that said writing was obtained by practicing fraud upon him.
Said defence is to be tested at the appropriate time after adducing evidence by the parties. Reason assigned by defendant that he had to collect various documents relating to suit property so as to enable his Advocate to draft written statement and certain time was required to him to collect the documents, appears probable. In the facts of matter when allegation of practicing fraud upon him in relation to writing sent through post to the Court then it is unjust to deprive defendant from contesting present matter on merits. Therefore, in the interest of justice and fair trial, I am inclined to allow present notice of motion by imposing costs upon defendant. Hence, pass following order.
ORDER
1. Notice of Motion No.4319/19 is allowed and made absolute in terms of prayer clauses (a) and (b) subject to payment of costs of Rs.3,000/-(Rupees Three Thousand Only) to the plaintiff within period of two weeks from the date of order.
Defendant is at liberty to deposit costs payable to the plaintiff in Court.
2. After payment of costs by the defendant, his written statement be taken on record and marked exhibit.
3. Accordingly, Notice of motion is disposed of.
Adj for directions to 10.02.2020.
Nature Of Disposal: ALLOWED
Disposal Date: 10-01-2020