Order 1

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT – 13
IN
R.A.D. SUIT NO. 243 OF 2021
(CNR-MHSCA-3000419-2021)
Mr. Ajit Kantilal Dharia ...Plaintiff
Versus
1) M/s. Smile Shelters and Ors. ...Defendants
Mr. B. R. Singh, Ld. Advocate for Plaintiff.
Mr. R. S. Karia, Ld. Advocate for Defendants.
Coram :- R. N. Bansal, Judge
C. R. No. 36 [B.B.]
Date :- 07/12/2022
ORDER :
This is an application filed by defendant no. 1 for
condonation of delay in filing written statement with permission to
file written statement.
2. Perused application and say filed by the plaintiff. Heard
advocate for both parties. Perused record.
3. It is submitted by defendant no. 1 that, the suit summons
came to be served upon them on 09/08/2021. The defendant has
relied upon certain documents which have not been annexed
alongwith the plaint and it took some time to arrange for the
papers and further due to preoccupation he could not finalized the
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written statement. Therefore there is delay of about 61 days in
filing the written statement. The written statement is now ready.
The delay in filing the written statement is not intentional and/or
deliberate. No harm, loss and prejudice would be caused to the
plaintiff if the delay is condoned and defendant be permitted to file
the written statement. If the application is not allowed great harm,
loss and prejudice would be caused to the defendant, which cannot
be compensated in terms of money. Therefore it is prayed that, the
delay in filing the written statement be condoned and written
statement of defendant no. 1 may be taken on record.
4. The plaintiff has filed reply at Exh. 15 and submitted that,
the application is illegal, bad in law, frivolous, vexatious and not
maintainable in law. The suit summons served upon defendant no.
1 on 09/08/2021 and he filed Vakalatnama on 13/08/2021 and
thereafter the matter was adjourned from time to time. Defendant
no. 1 watching the proceeding and deliberately and intentionally
adopting the delay tactic. On 08/10/2021 though defendant no. 1
appeared through his advocate, but failed to make any application
for adjournment or for extension of time. Defendant no. 1
miserably failed to explain the reason and failed to give sufficient
ground for condonation of delay. Therefore it is prayed that, the
application may be dismissed with cost.
5. On perusal of record it appears that, there is delay in
filing the present application. Stipulation envisaged under Order
VIII Rule 1 is mandatory, therefore, it was incumbent upon the
defendant to submit their written statement within the limit as
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prescribed in Order VIII Rule 1 of the Code. It is pertinent to
mention here that, the Hon'ble High Court and Hon'ble Apex
Court in various case laws have construed the amendment of
Order VIII Rule 1 of the Code liberally.
6. Defendant no. 1 has requested that, if they are not
permitted to file written statement, it would cause serious
prejudice and injustice to them. It appears that, defendant no. 1
was served on 09/08/2021 and the present application is filed in
the month of November, 2021 and therefore there is delay in filing
the written statement by defendant. The reasons mentioned in the
present application are not proper and sufficient as not supported
by the document, but it can be probable. So also it cannot be
ignored the settled principle of law that the substantial justice
should not be defeated by any procedural technicalities. Therefore,
for the purpose of deciding the real controversy in the matter, it is
essential to give sufficient opportunity to the party for defending
their case. So far as the question of delay is concerned, the same
may be condoned by imposing cost on the failure party. No
prejudice will be caused to the plaintiff if the application is
allowed. Therefore, in such circumstances, it appears judicious to
grant permission to defendant no. 1 for filing written statement by
imposing cost upon them. Hence, the following order :
: ORDER :
1. The application is allowed as prayed subject to cost of
Rs. 500/- (Rs. Five Hundred Only) payable to the
plaintiff on or before next date.
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2. Both parties to take note.
(Dictated and pronounced in open Court.)
(R. N. Bansal)
Date : 07/12/2022 Judge, C.R. No. 36
Order dictated on : 07/12/2022
Order checked and signed on : 07/12/2022
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