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 – 11
IN
R.A.E. SUIT NO. 278 OF 2021
(CNR-MHSCA-3000603-2021)
1. Shri Rakesh Champalal Kothari and Ors. ...Plaintiffs
Versus
Shri Bharatkumar Manubhai Joshi ...Defendant
Mr. Lalit V. Jain, Ld. Advocate for Plaintiffs.
M/s. Solicis Lex, Ld. Advocate for Defendant.
Coram :- R. N. Bansal, Judge
C. R. No. 36 [B.B.]
Date :- 07/12/2022
ORDER :
This is an application filed by the defendant for
condonation of delay in filing written statement with permission to
file written statement.
2. Perused application and say filed by the plaintiffs. Heard
advocate for both parties. Perused record.
3. It is submitted by the defendant that, the writ of
summons have been served upon him on 25/08/2021 through
Bailiff of this Court. His previous advocate has filed his
Vakalatnama on 24/09/2021 and sought time to file the written
statement. The defendant is a senior citizen and a layman having
no knowledge of law and legal proceedings. Moreover due to
negligence of his previous advocate he could not file the written
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statement.
4. It is further submitted by the defendant that, the other
tenants approached him with suggestion to appoint the same
lawyer and he appointed the same lawyer. The appointed advocate
filed Vakalatnama, but further did not attend the matter on
subsequent dates and also failed to take necessary steps in the said
matter. Now the defendant have changed his previous advocate
and obtained an NOC from him. The delay is not intentional or
deliberate and is caused due to the circumstances beyond his
control. If the written statement is not taken on record grave
prejudice and hardship will be caused to the defendant which
cannot be compensated in terms of money. No prejudice will be
caused to the plaintiffs if delay is condoned and written statement
is taken on record. Therefore it is prayed that, the delay of 337
days in filing the written statement be condoned and written
statement of defendant may be taken on record.
5. The plaintiff has filed reply at Exh. 13 and submitted that,
the application is false, frivolous, vexatious, misconceived,
untenable and non-maintainable in law. The defendant made
various false statements on oath. The plaintiff is not aware and
therefore deny that defendant is a senior citizen. The defendant
has come up with false and concocted story without any
reasonable cause or ground to condone the delay. If delay is
condoned and written statement is taken on record then grave
harm, loss, injury and prejudice would be caused to the plaintiff.
Therefore it is prayed that, the application of the defendant may be
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dismissed with exemplary cost.
6. 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 his written statement within the limit as
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.
7. The defendant has requested that, if he is not permitted to
file written statement, it would cause serious prejudice and
injustice to him. It appears that, defendant has filed this
application in the month of July, 2022. As per the contention of
defendant it appears that, defendant was served on 25/08/2021.
Therefore it appears that there is long 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. 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 his 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 the
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defendant for filing written statement by imposing cost upon him.
Hence, the following order :
: ORDER :
1. The application is allowed as prayed subject to cost of
Rs. 1000/- (Rs. One Thousand Only) payable to the
plaintiff on or before next date.
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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