Final Order 1

Order Details: Other
Pdf Text: 13.12.2019
SU 1952/19
NM 2724/19
Exh.5
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. Shinde for plaintiff present.
Adv. Goyal for defendant no.4 present.
Adv. Ashish Dubey for defendant no.1 present.
Despite service of NM upon defendant no.5, none appeared on behalf of
defendant no.5. So notice of motion is to proceed exparte against defendant
no.5.
Plaintiff is directed to take steps for service of Writ of summons and NM upon
defendant no.3.
Plaintiff is also directed to serve Writ of summons upon defendant no.5.
Adv. Ashish Dubey appeared on behalf of defendant no.2 and filed V/N t.o.r.
Exh.5
He tendered draft NM t.o.r.
O Leave granted to register it.
Copy given to plaintiff.
He also annexed W/s to draft NM.
Say filed by plaintiff on draft NM itself.
KB
LO
Heard both sides.
ORDER PASSED BELOW DRAFT NOTICE OF MOTION
Perused draft notice of motion, affidavit in support of it and reply of
plaintiff. Heard respective counsel for parties.
Draft notice of motion is taken out by defendant No.2 to condone delay
caused in filing written statement and to take the same on record. She assigned
reason that as her husband was suffering from cancer since November, 2018
and he underwent major operation and undergoing Chemo Therapy session so
she has to take care of her husband. Because of that she could not remain
present before this court nor depute anyone to make any representation on her
behalf.
Plaintiff objected to the 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.
Defendant No.2 assigned reason on solemn affirmation. There is no reason
to disbelieve her contention in that regard. More so, delay caused cannot be
said to be deliberate and intentional. Further, defendant No.2 has annexed
written statement along with draft notice of motion which shows bonafide on
her part and that she does not want to delay the trial. Considering the above
facts, in the interest of justice and equity I am inclined to allow present draft
notice of motion subject to imposition of costs upon defendant No.2. Hence,
pass following order.
ORDER
1. Draft Notice of Motion is allowed and made absolute in terms of prayer
clause (a) subject to payment of costs of Rs.2000/ to the plaintiff within period
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Exh.6
of two weeks from the date of this Order.
Defendant No.2 is at liberty to deposit costs payable to the plaintiff in the
Court.
2. On payment of costs, written statement of defendant No.2 be taken on
record and marked exhibit.
3. Draft notice of motion be registered for statistical purpose.
4. Accordingly, draft notice of motion is disposed off.
…................
Defendant No.2 paid the costs of Rs.2000/ to advocate for plaintiff who
accepted costs of behalf of plaintiff.
Ex.6 – Written statement of defendant No.2.
Defendant No.2 filed pursis to treat written statement as reply to notice of
motion No.2724 of 2019.
Adjourned for service of defendant No.3 to 24.01.2010
Judge
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