Tuesday, 3 January 2017

Whether court has power to condone delay in filing of written statement?

It   is   thus   clear   from   these   decisions   that   where   other
interim applications are decided or are pending and delay occurs in
filing Written Statement that could be sufficient ground to condone
the delay.  In the case at hand temporary injunction application was
being contested and other two are still pending.  Considering these
facts there was no justification in pronouncing the judgment under
Order   8   Rule   10.     The   present   case   stands   on   a   better   footing
inasmuch as reply to temporary injunction application which was
filed  within  30   days   is  only  to   be  treated   as     Written   Statement.

There was therefore infact a compliance.   It must be deemed that
the   Written   Statement   was   filed   on   the   day   the   reply   was   filed.
There is no reason to hold otherwise.   The procedure is not laid
down   to   punish   any   party   but   is   laid   down   to   ensure   a   speedy
disposal of the disputes.  Since the reply was already on record there
was   no   deliberate   attempt   to   cause   delay.     Shri   Pillai   learned
counsel for the petitioners submitted the following decisions:
1.2004(4) Maharashtra Law Journal 739
2.AIR 2005 Supreme Court 2441
3.AIR 2005 Supreme Court 3304
4.AIR 2005 Supreme Court 3353
5.2003(4) Maharashtra Law Journal 1034
6.2004(2) Maharashtra Law Journal 419
7.2004(2) Maharashtra Law Journal 1126
8.AIR 2005 Gauhati 37
9.AIR 2006 Jarkhand 8
10.AIR 2006 Bombay 1
11.2008(2) Maharashtra Law Journal 754 

Ratio in the first decision is the same as in cases referred to above.
In the second decision the Supreme Court held that Rule 1 spells a
disability   of   defendant   but   the   said   Rule   does   not   impose   an
embargo   on   part   of   the   Court.     Thus   the   Court   in   certain
circumstances condoned the lapse.  Similar is the ratio in the third
and fourth decisions.  After taking the stock of other decisions it is
clear   that   Court   has   a   power   to   condone   the   lapse   in   filing   the
Written Statement beyond 90 days.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR
BENCH NAGPUR.
  WRIT   PETITION   NO.  44     OF  2009
Methodist Episcopal Church,
Civil Lines, Nagpur 
V
 Methodist Church in India

CORAM:   C.  L.  PANGARKAR  J.
Date:    24th   APRIL   2009.
Citation:2009(4) MHLJ589

This Writ Petition has been filed by the original plaintiffs
under Article 226 and 227 of the Constitution of India.  Facts giving
rise to this petition are as follows:
The   petitioner­plaintiff   instituted   a   suit   for   possession,
declaration,   injunction   and   cancellation   of   instruments.     The
plaintiffs have also filed an application for temporary injunction in

the   said   suit.     Defendants   after   service   of   notice   of   temporary
injunction   application   appeared   before   the   Court   and   filed   their
reply to the application for temporary injunction application.  They
sought time to file Written Statement.   It is the contention of the
plaintiffs   that   after   12.12.2007   the   defendants   did   not   seek   any
further time to file Written Statement.  They were in fact bound to
file Written Statement within 90 days.  They having not done so.  It
is   the   contention   of   the   plaintiffs   that   the   Court   should   have
delivered the judgment under Order 8 Rule 10.    Plaintiffs therefore
moved an application purporting to be an application under Order
8 Rule 10.  Defendants resisted the application and contended that
no decree can be passed against them due on deemed admission as
contended   by   the   plaintiff.     They   submitted   that   they   have
vehemently   contested the application for injunction.   They never
had intention to admit anything.  They also submit that they did not
file Written Statement because of the fact that they had moved an
application under Section 9­A of the Civil Procedure Code as well as
application under Order 7 Rule 11 of the Civil Procedure Code for
rejection   of   the   plaint.     It   is   their   contention   that   both   these

applications have not been decided and as such Written Statement
was not filed and this would go to show that the defendants always
intended to contest the suit.   Further the defendants contend that
they   have   filed   pursis   adopting   the   reply   filed   to   the   injunction
application as Written Statement and therefore there is no question
of judgment being passed under Order 8 Rule 10.  Learned Judge of
the trial Court heard the parties and rejected the application moved
by   the   plaintiffs   to   deliver   the   judgment   under   Order   8   Rule   10.
Being aggrieved by that this Writ Petition is filed.  
2. I have heard the learned counsel for the petitioners and
the respondents.  Plaintiffs­petitioners had made a prayer by filing
application Ex.80 to pass a judgment under Order 8 Rule 10 since
the defendants have failed to file Written Statement within 90 days.
Rule   1  of  Order   8  in  fact  contemplates   defendant  to   file   Written
Statement within 30 days from the date of service of summons and
proviso says that if the defendant does not file Written Statement
within 30 days the Court may allow him to file it within 90 days after
giving reasons.   Thus it is clear that the maximum period that is

allowed   to   the   plaintiff   to   file   Written   Statement   is   90   days.
Consequences of not filing Written Statement within this time are
given in Rule 5 and 10 of Order 8.  Rule 5 says that if the defendant
fails to file pleadings it shall be lawful for the Court to pronounce
judgment on the basis of the facts contained in the plaint.  Rule 10 is
almost   similar.     The   plaintiffs   on   account   of   these   provisions
claimed that judgment should be pronounced.  It is not in dispute
that actually Written Statement was not filed within 90 days.   Shri
Pillai learned counsel for the petitioners plaintiffs submit that in the
instant   case   defendants   have   admittedly   failed   to   file   Written
Statement.   He submits that there was no sufficient cause for not
filing Written Statement within 90 days and therefore Court was in
fact left with no alternative but to pronounce the judgment under
Order 8 Rule 10.  Learned counsel for the respondents/defendants
on   the   other   hand   contends   that   defendants   have   been   actually
seriously   contesting   the   suit   as   well   as   interim   application.     He
submits   that   defendants   have   filed   a   pursis   stating   that   reply   to
injunction   application   be   treated   as   Written   Statement.     He
contends   that   therefore   this   is   not   a   case   where   no   Written

Statement is at all filed.  To counter this  Shri Pillai submits that this
pursis ought  to have been filed within 90 days and that having not
been  so filed the case according to him  falls under Rule 10.
  
3. It has to be borne in mind that the plaintiffs had filed an
application for temporary injunction in the suit.   Defendants had
immediately   filed   reply   to   this   application   and   had   seriously
contested the application.   Not only the defendants contested the
temporary injunction application but have even filed two separate
applications   which   go   to   the   very   root.     It   is   submitted   that   the
defendants   have   filed   application   under   Section   9­A   of   the   Civil
Procedure Code and also an application under Order 7 Rule 11 for
rejection of plaint.  It is submitted that both these applications are
still pending.  It is contended by learned counsel that it is due to the
fact   that   temporary   injunction   application     being   seriously
contested and that two applications deciding the question of law of
jurisdiction and plaint being defective were pending, the Written
Statement could not be filed.   He submits that this was in fact a
sufficient reason to condone the lapse.  He submits that in any case

pursis treating reply to injunction application as Written Statement
is filed and the said reply was filed within 30 days.  He submits that
therefore Written Statement could be said to be filed in fact within
30 days.   I find much substance in the argument.   What is always
required to be seen is whether defendant was desirous of seriously
contesting the suit.  Here the conduct of the defendants shows that
defendants   filed   reply   to   temporary   injunction   application   and
separately raised pleas with regard to jurisdiction and plaint being
defective.  Defendants never intended to let the suit be decreed by
default.    It  must  therefore   be assumed   that  the  defendants  were
under   bonafide   belief   that   the   Written   Statement   could   be   filed
later.   There was no deliberate lapse at all.   Supreme Court in  AIR
2008 Supreme Court 2099 (Zolba  Vs.  Keshao & Ors. ) has held  that
provisions   of   Rule   1   Order   8   are   directory   and   delay   could   be
condoned   in   exceptional   circumstances.     It   is   obvious   that   the
provisions  is directory and not mandatory.  This Court in a decision
reported   in  2007(3)   Maharashtra   Law   Journal   564   (Pramod   s/o
Baliram  Wavge   Vs.    Sahadev  s/o  Kisan  Khadke)  has  observed as
follows:     

“Observations in paragraph 29 of the
judgment in Chintaman Vs. Shivaji have to be
read along with the context which is provided
by   paragraph   22   of   the   judgment,   where   the
Division Bench of this Court observed that the
intention   was   not   to   penalize   the   defendant
who does not submit defence in the prescribed
period.  The change in the Civil Procedure Code
were   aimed   at   curtailing   delays   and   not
defences.   The learned trial Judge should have
seen that after this rejection of the petitioner’s
application taking objection to the jurisdiction
of the Court the petitioner had come up with
the   written   statement   within   five   days.
Therefore,   exceptional   or   extraordinary   case
did exist for the learned Judge to have exercised
his discretion.  It seems that the learned Judge
felt   that   application   at   Exh.16   whereby   the
petitioner   sought   to   file   reply   and   written
statement on record was just another device for
prolonging   the   proceedings,   since   the
petitioner had not filed written statement along
with application.   Clarification by the learned
counsel   for   the   petitioner   would   take   care   of
this aspect.”   
In   yet   another   decision   this   Court   took   the   following   view   in
2006(1)Maharashtra Law Journal 128 (Nandlal Vithaldas And Co.
Shegaon and Another  Vs.  Agricultgural Produce Market Committee
Shegaon):

“As narrated hereinbefore, it seems
that the Written Statement is filed on 1st date
soon   the   application   Exh.   12   was   rejected.
Thus,   it   cannot   be   said   that   the   party   was
indifferent and negligent.   It was entitled to
raise legal objection as to jurisdiction which
it has raised.  Lapse in filing documents had
occurred   due   to   improper   legal   advice.
Failure   to   file   Written   Statement,   based   on
failure to file application for seeking time to
file   Written   Statement   until   the   decision   of
application for extension of time is thus, fully
attributable   to   the   legal   advice   and   not   a
lapse   attributable   to   the   wish   and   or
negligence of the client.”  
Similar is the ratio in 2007(3) Maharashtra Law Journal 564.  
It   is   thus   clear   from   these   decisions   that   where   other
interim applications are decided or are pending and delay occurs in
filing Written Statement that could be sufficient ground to condone
the delay.  In the case at hand temporary injunction application was
being contested and other two are still pending.  Considering these
facts there was no justification in pronouncing the judgment under
Order   8   Rule   10.     The   present   case   stands   on   a   better   footing
inasmuch as reply to temporary injunction application which was
filed  within  30   days   is  only  to   be  treated   as     Written   Statement.

There was therefore infact a compliance.   It must be deemed that
the   Written   Statement   was   filed   on   the   day   the   reply   was   filed.
There is no reason to hold otherwise.   The procedure is not laid
down   to   punish   any   party   but   is   laid   down   to   ensure   a   speedy
disposal of the disputes.  Since the reply was already on record there
was   no   deliberate   attempt   to   cause   delay.     Shri   Pillai   learned
counsel for the petitioners submitted the following decisions:
1.2004(4) Maharashtra Law Journal 739
2.AIR 2005 Supreme Court 2441
3.AIR 2005 Supreme Court 3304
4.AIR 2005 Supreme Court 3353
5.2003(4) Maharashtra Law Journal 1034
6.2004(2) Maharashtra Law Journal 419
7.2004(2) Maharashtra Law Journal 1126
8.AIR 2005 Gauhati 37
9.AIR 2006 Jarkhand 8
10.AIR 2006 Bombay 1
11.2008(2) Maharashtra Law Journal 754 

Ratio in the first decision is the same as in cases referred to above.
In the second decision the Supreme Court held that Rule 1 spells a
disability   of   defendant   but   the   said   Rule   does   not   impose   an
embargo   on   part   of   the   Court.     Thus   the   Court   in   certain
circumstances condoned the lapse.  Similar is the ratio in the third
and fourth decisions.  After taking the stock of other decisions it is
clear   that   Court   has   a   power   to   condone   the   lapse   in   filing   the
Written Statement beyond 90 days.  In the circumstances I find that
the   learned   Judge   of   the   trial   Court   did   not   commit   an   error   in
rejecting the application.   Writ Petition is dismissed.   Rule made
absolute.  

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