Final Order 1

Order Details: Other
Pdf Text: 18.01.2020
SU 3336/18
NM
2267/19
NM
4814/19
NM
4813/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Adv. Char's D'Mellow for plaintiff present.
Adv. Sahil Parande for defendant No. 1 present.
He tendered registered NM Nos.4813 and 4814/19 t.o.r.
Adv. Vinod Motghare for defendant No. 2 present.
Reply filed by plaintiff on both above referred notice of motions
itself.
Heard both sides on notice of motions
KB
LO
Order passed below notice of motion No.4813 of 2019
Perused notice of motion, affidavit in support of it, reply of
plaintiff and roznama of proceeding. Heard respective counsel
for parties.
Present notice of motion is taken out by the defendant No.1
for condoning delay caused in filing written statement and to
take the same on record.
It is contended that plaintiff had filed suit No.3336 of 2018
mentioning incorrect name of defendant No.1 and thereafter
she took out chamber summons No.704 of 2019 for correcting
the name which was allowed and amended copy of the plaint
was served upon defendant No.1 in Court on 16.08.2019. It is
further contended that legal representative of defendant No.1
company due to illhealth and subsequent death of his father
was not attending office therefore written statement was not
drafted during the period from 16.08.2019 to 26.11.2019.
Delay caused in filing written statement is not deliberate but on
account of circumstances beyond the control of defendant No.1.
Accordingly, they prayed in above terms.
Plaintiff opposed notice of motion on the count that no
ground is made out for condoning delay.
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.
On perusal of roznama it is clear that Chamber Summons
No.704 of 2019 to correct the name of defendant No.1 was
allowed on 15.03.2019. However, plaintiff carried out said
amendment on 29.06.2019 and served the amended copy of
plaint upon defendant No.1 only on 16.08.2019. Considering
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above facts and reasons assigned by defendant No.1, in the
interest of justice and fair trial it is unjust to deprive defendant
No.1 from contesting the matter on merits. Therefore, I am
inclined to allow present notice of motion subject to costs.
Hence, pass following order:
ORDER
1. Notice of Motion No.4813 of 2019 is allowed and made
absolute in terms of prayer clause (a) subject to payment of
costs of Rs.2000/ (Rupees Two Thousand only) to the plaintiff
within period of two weeks from the date of this order.
Defendant No.1 is at liberty to deposit the costs payable to
plaintiff in the Court.
2. After payment of costs, written statement of defendant
No.1 be taken on record and marked exhibit.
3. Accordingly, notice of motion is disposed off.
…....
Order passed below notice of motion No.4814 of 2019
Perused notice of motion, affidavit in support of it, reply of
plaintiff and roznama of proceeding. Heard respective counsel
for parties.
Present notice of motion is taken out by defendant No.1 for
setting aside order dated 25.11.2019 passed in Notice of Motion
No.2267 of 2019 and permit them to file reply and also to hear
and decide Notice of Motion No.2267 of 2019 on merits.
It is contended by partner of defendant No.1 that on
25.11.2019 he had instructed his advocate to file written
statement and that, same should be treated as reply to notice of
motion No.2267 of 2019. Said written statement was affirmed
on same date however before the concerned person could reach
this Court matter was called out and impugned order was
passed. In above facts and circumstances defendant No.1 made
prayer in above terms
Plaintiff opposed notice of motion on the count that no
ground is made out to allow notice of motion.
On perusal of roznama it is clear that plaintiff has tendered
registered notice of motion No.2267 of 2019 on 29.06.2019 and
served the copy of amended plaint upon defendant No.1 on
16.08.2019. On 01.11.2019, last chance was granted to
defendant No.1 to file reply to said notice of motion. But, on
25.11.2019, none present on behalf of defendant No.1 and
reply was not filed by them so said notice of motion was
proceeded without reply against defendant No.1. There are
lapses on the part of representative of defendant No.1. But, in
the interest of justice and fair trial I am inclined to grant an
opportunity to defendant No.1 to contest the said notice of
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motion No.2267 of 2019 on merits. Therefore, notice of motion
deserves to be allowed subject to costs. Hence, pass following
order:
ORDER
1. Notice of Motion No.4814 of 2019 is allowed and made
absolute in terms of prayer clauses (a) & (b) subject to payment
of costs of Rs.2000/ (Rupees Two Thousand only) to the
plaintiff within period of two weeks from the date of this order.
Defendant No.1 is at liberty to deposit the costs payable to
plaintiff in the Court.
2. After payment of costs, reply of defendant No.1 be taken on
record.
3. Accordingly, notice of motion is disposed off.
Adjourned for direction to 14.02.2020
Judge
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