Interim Order 1

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
(Bandra Branch)
ORDER BELOW EXHIBIT NO. 10
IN
R.A.E. Suit No. 134 of 2023
[ CNR No.:- MHSCA3-000263-2023 ]
Mr. Avdhesh Kumar Vishwakarma … Plaintiff
Versus
1. Mr. Sairagi Yadav & Anr. … Defendants
Advocate for the plaintiff : Mr. Dinesh R. Pandey
Advocate for the defendants : Mr. S. M. Yadav & Mr. A. M. Yadav
Coram : Smt. J. D. Hushangabade
Judge, C.R. No. 40,
Date : 28th January, 2025.
:: ORDER ::
This is an application filed by C.A. of defendant No.2 to file
written statement of defendant no.2 on record by condoning delay 361
days. It is averred in the application that at the time the writ of
summons was served, defendant no.2 was in their native place, and it
was served upon their son. Upon returning to Mumbai, defendant no.2
contacted their advocate to inquire about the progress of the case.
Subsequently, after their advocate inspected the matter, defendant no.2
was advised to file a written statement along with an application for
condonation of delay of 361 days. The defendant has submitted in his
application that, the delay has been caused in filing the written
statement within statutory period and it may kindly be condoned on
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account of reasons stated in the application.
2. On the other hand, plaintiff filed reply vide Exh.12 to the
present application and denied each and every allegation contained in
the application and stated that the allegations contained therein are
false to the knowledge of the plaintiff. The said application as filed by
the C.A. of the defendant no.2 is not maintainable and therefore the
said application is non-est, and it liable to be dismissed with costs.
There is not believable averment made in application for condonation of
delay and the defendant has made out the present application at very
belated stage without any explanation of the delay. There is no proper
ground mentioned for delay in present application. Hence, prayed that
the application of the defendant be dismissed with costs.
3. Perused application and say. Heard both sides. It is
specifically averred by defendant that at the time the writ of summons
was served, defendant no.2 was in their native place, and it was served
upon their son. Defendant suppose to file written statement within
stipulated period of time, but due to reasons well mentioned in the
application, written statement could not be filed on time and caused
delay. The grounds mentioned by defendant for condonation of delay
appears to be reasonable and just one. The delay on the part of
defendant can be considered by imposing justifiable costs. It is settled
principle of law that equal opportunity of being heard should be
granted to both the parties. Therefore, if defendant is permitted to file
written statement by condonation of delay, it will not cause any
prejudice to the rights of plaintiff. On the contrary, the subject matter of
the suit will be decided on merits. Hence, in the interest of justice, I
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proceed to pass following order.
:: O R D E R ::
1. Application at Exh.10 is allowed subject to
cost of Rs.2,000/- (Rupees Two Thousand)
payable to the plaintiff on or before next
date.
2. Delay of 361 days for filing written statement
is hereby condoned.
3. Upon compliance of payment of cost of
Rs.2,000/- written statement of defendant
No.2 be taken on record.
4. Both parties to take note of this order.
( J. D. Hushangabade )
Date: 28/01/2025. Judge, C.R. No. 40
Order dictated & Typed on : 28/01/2025.
Order checked & signed on : 30/01/2025.
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