Final Order 1

Order Details: Other
Pdf Text: 7.01.2020
SU 1189/19
NM
4807/19
NM
2342/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. Mukesh Dubey for plaintiff present.
Plaintiff present.
Defendant present and tendered registered NM No.4807/2019.
Say filed by advocate for plaintiff to notice of motion.
Heard advocate for plaintiff.
KB
LO
Adv. Pankaj Waghmare for defendant present.
Heard advocate for defendant on NM 4807 of 2019.
KB
LO
Order passed below Notice of Motion No.4807 of 2019
Perused Notice of motion, affidavit in support of it, reply
of plaintiff and Roznama in the present suit. Heard respective
counsel for parties.
Present Notice of motion is taken out by the defendant for
condoning delay caused in filing reply and written statement by
her and to set aside impugned order dated 07.10.2019 and to
take her written statement and reply on record.
It is the contention of defendant that because of poor
financial condition she has not engaged Advocate in the present
matter and unable to understand nature of suit filed by the
plaintiff. However, she regularly attended the Court in present
matter. On 07.10.2019, this Court has passed order of no reply
in relation to Notice of Motion No.2342 of 2019 against the
defendant. It is contended that due to unavoidable
circumstances she could not file her written statement and reply
in prescribed time. She has good defence in present suit and if
her written statement and reply are taken on record then no
prejudice would be caused to the plaintiff. On the other hand if
reply and written statement are not taken on record then
defendant will suffer irreparable loss. Accordingly, she prayed
in above terms.
Plaintiff filed reply on Notice of Motion itself and strongly
objected to Notice of motion on the count that period of delay
in taking out Notice of motion is not mentioned and prayed to
dismiss 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
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V/s Keshav 2008 AIR SCC 2099). In view of this legal position,
now, I consider notice of motion.
On perusal of Roznama, it is apparent that initially plaintiff
appeared in person in present matter and he has engaged
Advocate for the first time on 02.11.2019 i.e. after passing of
impugned order dated 07.10.2019 whereby Notice of Motion
No.2342 of 2019 has been proceeded without reply of
defendant. In above circumstances, possibility could not be
ruled out that she could not understand about the various
stages in present proceeding and consequences of her failure to
give reply in relation to the proceeding taken out against her. In
the facts of matter delay caused cannot be said to be intentional
and deliberate. In the interest of justice and fair trial, it is not
just to deprive defendant from contesting the matter on merits.
Therefore, I am inclined to allow present Notice of motion
subject to imposing certain costs upon defendant keeping in
view her conduct. Hence, pass following order.
ORDER
1. Notice of Motion No.4807 of 2019 is allowed and made
absolute in terms of prayer clause (a) subject to payment of
costs of Rs.1,000/(Rupees One Thousand Only) to the plaintiff
within period of two weeks from the date of this order.
Defendant is at liberty to deposit the costs payable to plaintiff
in the Court.
2. On payment of costs, written statement and reply of
defendant be taken on record and marked exhibit.
3. Accordingly, notice of motion is disposed off.
Adjourned for direction to 31.01.2020
Judge
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