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) MHLJ 589
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.
Print Page
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) MHLJ 589
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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