2009(4)BomCR255, 2009(4)MhLj589
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Decided On: 24.04.2009
Appellants: Methodist Episcopal Church through its Trustees Miss Leelabati D/o Rev. Samuel Dubey and Ors.
Vs.
Respondent: Methodist Church in India through its General Secretary and Ors.
Vs.
Respondent: Methodist Church in India through its General Secretary and Ors.
Hon'ble Judges/Coram:
C.L. Pangarkar, J.
C.L. Pangarkar, J.
1. Rule. Heard finally.
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 petitioner-plaintiff 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. Plaintiffs-petitioners 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 MANU/SC/7444/2008 : AIR2008SC2099 (Zolba v. Keshao and 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) Mh LJ 564 (Pramod S/o Baliram Wavge v. Sahadev S/o Kisan Khadke) has observed as follows:
Observations in paragraph 29 of the judgment in Chintaman v. 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 MANU/MH/1108/2005 : 2006(1)MhLj128 (Nandlal Vithaldas and Co. Shegaon and Anr. v. Agricultural 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) Mh LJ 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(5)BomCR5732. AIR2005SC24413. AIR2005SC33044. AIR2005SC33535. 2003(4)MhLj10346. 2004(5)BomCR5487. 2004(6)BomCR4348.9. : AIR 2006 Jhar 810. : AIR2006Bom111.2007(5)BomCR354
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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