Final Order 1

Order Details: Notice of Motion
Pdf Text: Adv. O.P. Tiwari for plaintiff present.
Adv. Vidya S. for deft. nos.1 and 2 present.
Adv. Wasim Khan for deft. no.3 present.
COMMON ORDER IN N/M NO.4844/19 AND 4845/19
Heard. By these N/M's, the deft. no.3 is seeking condonation of delay in filing W/S and setting
aside without W/S order. Ld. Counsel for deft. no.3 submitted that the counsel could not reach the
court in time on 26.11.2019. Later on, the counsel for deft. no.3 came to the court and tendered
application to oppose interim relief. Meanwhile, the court has proceeded without W/S and reply of
deft. no.3. The counsel for deft. no.3 submitted that there is delay of 110 days in filing W/S and the
delay is not deliberate. The deft. no.3 was unable to give instruction to his counsel due to his illness
and he had to undergo cataract surgery. Therefore, he seeks leave of this court for filing the W/S
after condoning the delay and setting aside no W/S order.
The N/M's are vehemently opposed by the plaintiff on the count that the delay is deliberate and
intentional. The deft. no.3 wish to protract the hearing in N/M no.2672/18 tendered by plaintiff.
The counsel for deft. no.3 had reached the court after the matter was called cannot be the ground for
delay. He prayed for dismissing the N/M's.
On perusal of the record, it appears that without W/S order was passed on 05.07.2019 but at the
time of passing order to proceed without reply to N/M, again the order was passed to proceed
without W/S of deft. no.3. The counsel for deft. no.3 might have reached the court after the matter
was called but on the same day, deft. no.3 was not ready with W/S. Therefore, the said ground is
not justifiable ground.
Be that as it may, the matter is at initial stage. The matter is not cropped up for evidence. The
substantial rights of the parties are involved. The deft. no.3 wish to actively participate in the
proceeding. In such types of motions, there should not be hyper-technical and pedantic approach.
If the W/S is taken on record, no prejudice would be caused to the plaintiff and it would be in the
interest of the parties if the matter is decided after giving fair opportunity to the parties to the suit.
Thus, in the interest of justice, both N/M's need consideration. Therefore, it is expedient to pass the
following order.
ORDER
1. N/M No.4844/2019 and N/M No.4845/2019 are made absolute in terms of its prayer clause (a)
and (b) subject to the cost of Rs.2,500/- to be paid by the deft. no.3 to the plaintiff within a period of
two weeks from today.
2. Payment of cost is subject precedent.
3. On compliance of the order, the W/S be taken on record.
4. N/M No.4844/2019 and N/M No.4845/2019 are disposed off accordingly.
The matter is adjd for compliance and N/M hearing to 11.03.2020.
Judge
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