Interim Order 2

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT – 17
IN
R.A.E. & R. SUIT NO. 412 of 2022
(CNR No. :- MHSCA3-001091-2022)
Mrs. Grace w/o Augustine Pinto ... Plaintiff
Versus
Mrs. Naznin Joseph D’souza ... Defendant
Mr. A. M. Saraogi, Ld. Advocate for the Plaintiff.
Mr. R. L. Dubey, Ld. Advocate for the Defendant.
Coram :- R. N. Bansal, Judge
C. R. No. 36 [B.B.]
Date :- 21/01/2023
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 plaintiff. Heard
advocate for both parties. Perused record.
3. It is submitted by the defendant that, the writ of
summons was served upon her on 23rd September, 2022 alongwith
injunction application. Thereafter she went to her advocate and
filed Vakalatnama on 26th September, 2022. Meanwhile the
plaintiff started harassment by preventing her access to the suit
premises and the bouncers posted at the property were preventing
her from using one of the access points to the suit premises. The
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plaintiff’s representatives and bouncers started putting iron sheets
around the suit bungalow and again she was forced to call Police to
recover possession of the garage in the suit property. Because of
the aforesaid facts and circumstances the defendant forgot to
inform her advocate about the writ of summons served upon her in
the suit and give instructions for preparing written statement in
the suit.
4. It is further submitted by the defendant that, on 20th
January, 2023 when she went to her advocates office and he asked
about service of writ of summons in the suit, she realized that she
forgot to inform her advocate about the service of writ of summons
in the suit. Thereafter she instructed her advocate for preparing
written statement. Due to aforesaid circumstances the delay
caused. There is no deliberate attempt on the part of the defendant
to delay the proceedings of the present suit. Therefore it is prayed
that the delay of 89 days in filing written statement be condoned
and written statement of defendant be taken on record.
5. The plaintiff has filed say at overleaf and objected the
application.
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 her 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
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Order VIII Rule 1 of the Code liberally.
7. The defendant has requested that, if she is not permitted
to file written statement, it would cause serious prejudice and
injustice to her. It appears that, there is delay in filing the written
statement by the defendant. However, 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
her case. 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 defendant for filing written
statement. Hence, the following order :
: ORDER :
1. The application is allowed as prayed.
2. Both parties to take note.
(Dictated and pronounced in open Court.)
(R. N. Bansal)
Date : 21/01/2023 Judge, C.R. No. 36
Order dictated on : 21/01/2023
Order checked and signed on : 21/01/2023
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