Final Order 1

Order Details: Other
Pdf Text: 10.01.2020
SU 1322/18
NM4319/19
NM2914/18
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
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
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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 June2018. 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.
Judge
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