Final Order 1

Order Details: Notice of Motion
Pdf Text: Adv. Bhavika h/f. Adv. Kishor for plaintiff present.
Adv. Sanjay Khale for deft. nos.1 and 2 present.
Deft. no.2 present.
ORDER IN N/M NO.4963/2019
By this N/M, deft. nos.1 and 2 seeks leave of the Court to tender written statement by condoning the
delay. Heard.
Ld. counsel for deft. nos.1 and 2 submitted that the defendants have raised the issue of jurisdiction
of this Court by preliminary objection under section 9-A of C.P.C. dated 28.07.2016. By virtue of
ordinance dated 27.06.2018, the provisions of 9-A were repealed. On 12.10.2018, this Court
proceeded without written statement of defendants. The delay is not deliberate and prayed for
condoning the delay.
Plaintiff denied the contention of the defendants. It is the contention of plaintiff that it is inordinate
delay of about more than 1000 days. Defendants have not given any cause for condoning the delay.
On perusal of record, it is apparent that defendants have filed application (Exh.3) u/s.9-A of C.P.C.
The court vide order dated 05.03.2018 framed preliminary issues. The Court further by order dated
11.09.2018 held that the provisions of section 9-A of C.P.C. have been repealed and therefore,
preliminary issues would be tried along with the other issues and subsequently on 12.10.2018, the
suit was proceeded without written statement of defendants.
It appears that the defendants were bonafidely contesting the suit on the count that this court has no
jurisdiction. But, in view of the development of repealing of section 9-A of C.P.C, they were
unable to pursue their preliminary objection. Even, their right for the same was merged for
deciding at the time of deciding the suit on merits. Thus, it appears that the reason assigned by the
defendants is just and probable. But in-spite of the same, the defendants ought to have filed the
written statement after 11.09.2018.
Be that as it may, there should not be hyper-technical and pedantic approach in dealing with such
type of N/M. The evidence is not yet started. Substantial rights of the parties are involved. It
would be in the interest of parties, if the matter is decided on merits. No prejudice would be caused
to the plaintiff, if the defendants are permitted to put their defence. Plaintiff can be compensated by
way of reasonable cost. Hence, in the interest of justice, it is expedient to pass the following order.
ORDER
1. N/M No.4963/2019 is made absolute in terms of prayer clause (a) to (d) subject to cost of
Rs.2,000/- to be paid to the plaintiff within four weeks from today.
2. On payment of cost, the written statement annexed with N/M be taken on record.
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