Bombay HC: No Provision Under CPC To Extend Time For Filing Written Statement Due To Pendency Of Miscellaneous Application

The CPC nowhere provides that on filing a Miscellaneous Application, the time to file the written statement would be extended or excluded. Similarly, the Defendant claimed in the Application for condonation of delay that the period during which the Application under Order VII Rule 11 was pending, is entitled to be excluded and thus, the delay according to the Petitioner/ Defendant was calculated as only 14 days. Such calculation is completely on wrong advise or presumption. The written statement was filed after a period of 160 days along with the Application for delay wherein there are no sufficient reasons disclosed to exercise the discretion of the Court by condoning the delay. {para 15}

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO. 105 OF 2024

Federal Brands Ltd.,  Vs Cosmos Premises Pvt. Ltd., 

CORAM: BHARAT P. DESHPANDE, J.

DATED: 2nd AUGUST 2024

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Bombay HC: The time for filing written statement in Commercial suit runs from the date of receipt of copy of plaint and not merely writ of summons

This is indeed not the purport or ambit of the CCA at all. That Act seeks to fast-track the disposal of commercial suits. But that cannot come at the cost of equity and justice, including procedural fairness. No statute can be read like this. It is, therefore, impossible to accept the argument that time against the defendant for filing the written statement runs from the date of a bare-bones writ of summons without a copy of the plaint; and that it makes no difference when the plaintiff sends him a copy for no law or rule fixes any time within which the plaintiff must furnish a copy. The other side result in an equal absurdity, for no time is fixed either within which the defendant must seek a copy of the plaint from the plaintiff or his advocate. No statute can be read to lead to a self-annihilating or self-destructive or self-contradictory manner.8 It is plainly the duty of a court to construe a statute not literally but to give effect to its meaning and intent, and to avoid any interpretation that yields an absurdity. A construction that defeats the statute's objective must be rejected.9 {Para 25}

26. The consequence is inevitable. The writ of summons was wrongly issued. There is no valid service of the writ of summons at all. All that Metso can be said to have received is notice of institution of the suit. It was never served with the writ of summons properly so called. A non-conforming writ of summons is no writ of summons at all and service of a non-conforming writ of summons is no service at all. Technically speaking, therefore, no question of limitation in this case runs against the Defendant. And there is also no question of assessing any delay or the grounds for delay.

 In the High Court of Bombay

(Before G.S. Patel, J.)

Atlanta Limited  Vs Metso India Pvt. Ltd. 

Interim Application No. 425 of 2019 and Commercial Suit No. 765 of 2019

Decided on August 4, 2021, 

Citation: 2021 SCC OnLine Bom 1594 : AIR 2021 Bom 300 : (2021) 5 AIR Bom R 627

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Bombay HC: Reply to Miscellaneous application can not be treated as written statement in Commercial suits beyond the statutory period of 120 days available for filing of a written statement

Even otherwise, on a purposive interpretation of Order V Rule 1 and Order VIII Rules 1 and 10, it is clear that there is no scope for allowing a pursis or praecipe or application to be filed after expiry of the statutory period of 120 days for treating an affidavit or pleading filed earlier in the course of a commercial suit as a written statement. The amended provisions are designed to introduce a statutory prohibition for filing of a written statement beyond the prescribed period, so that trials of commercial suits are not delayed. Strict timelines are even otherwise provided at every important stage of the trial, so that commercial disputes are expeditiously disposed of in the interest of commerce and industry. In this scheme of things, it would be an anomaly to allow a written statement to be introduced at any time in the trial by defeating the statutory prohibition. {Para 9}

 In the High Court of Bombay

(Before S.C. Gupte, J.)

Interim Application No. 1 of 2019

In

Commercial IP Suit No. 1112 of 2018

Flipkart India Pvt. Ltd. and Another Vs Flipkart India Pvt. Ltd. and Another 

Interim Application No. 1 of 2019, Commercial IP Suit No. 1112 of 2018 and Interim Application No. 2 of 2019

Decided on May 26, 2020

Citation: 2020 SCC OnLine Bom 664 : (2021) 222 AIC 346.

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Supreme Court: Written Statement Must Have Para-Wise Reply To Plaint; Allegations Deemed To Be Admitted Unless Specifically Denied

 In the absence of para-wise reply to the plaint, it becomes a roving inquiry for the Court to find out as to which line in some paragraph in the plaint is either admitted or denied in the written statement filed, as there is no specific admission or denial with reference to the allegation in different paras.{Para 15}

15.1 Order VIII Rules 3 and 5 CPC clearly provides for specific

admission and denial of the pleadings in the plaint. A general or evasive denial is not treated as sufficient. Proviso to Order VIII Rule 5 CPC provides that even the admitted facts may not be treated to be admitted, still in its discretion the Court may require those facts to be proved. This is an exception to the general rule. General rule is that the facts admitted, are not required to be proved.

15.2 The requirement of Order VIII Rules 3 and 5 CPC are specific admission and denial of the pleadings in the plaint. The same would necessarily mean dealing with the allegations in the plaint para-wise. In the absence thereof, the respondent can always try to read one line from one paragraph and another from different paragraph in the written statement to make out his case of denial of the allegations in the plaint resulting in utter confusion.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8935 OF 2011

THANGAM AND ANOTHER Vs NAVAMANI AMMAL 

Rajesh Bindal, J.

Dated: March 04, 2024.

Citation:  2024 INSC 164.

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Can the court continue interim relief to the plaintiff if the defendant fails to file his written statement?

 Admittedly the application under Order 39 Rule 1 & 2 CPC is still pending consideration, since the written statement had not been filed by the parties disclosing their true stand. In such circumstances, this Court is of the opinion that interim protection which has been granted shall be liable to be continued, though the present revision petition is being disposed of. {Para 11}

 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Civil Revision No. 1556 of 2021 (O&M)

Decided On: 06.09.2021

Sainik Textile Mills (P) Ltd.  Vs.  Prestige Developers and Ors.

Hon'ble Judges/Coram:

Gurmeet Singh Sandhawalia, J.

Citation: MANU/PH/1809/2021

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Can say given by defendant's Advocate on the reverse side of the plaint be treated as a written statement of the defendant?

  The respondent Corporation's advocate appears to

have filed say under his own signature on reverse side of

page Nos. 3 and 4 of the plaint. This novel way of filing of

written statement cannot be said to be pleadings of the party

because they are neither signed by the representative of the

Corporation nor there is verification of the same. Though

the suit is contested, there is no written statement as

required by the law. {Para 3}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO. 427 OF 2005

Ashabai Murlidhar Karpe Vs The Municipal Corporation of Aurangabad, 

CORAM : P.R. BORKAR,J.

DATED : 30.06.2009

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Delhi HC: Time For Filing Written Statement Starts From Date Of Providing Suit And Documents To Defendant

 Service of summons in a suit, in order to constitute a starting point for the time available for filing of a written statement, has to be meaningful service. In other words, the time for filing written statement would commence from the date when the suit along with the documents is provided to the defendant. {para 7}

 IN THE HIGH COURT OF DELHI AT NEW DELHI

  CM(M) 991/2022 & CM APPL. 41285/2022 

MR. RAJESH KATHPAL  Vs M/S SHUBH STEEL 

CORAM: HON'BLE MR. JUSTICE C. HARI SHANKAR

 Dated: 12.10.2022

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How to appreciate evidence if state is taking different stand while filing written statement in Motor accident proceeding and while taking departmental proceeding against concerned driver?

 12.11 The Road Transport Corporation, in order to

escape its liability in the M.A.C.T. matter, has

taken up the contention that the driver was

driving in a proper manner and rider of the two

wheeler was driving in a rash and negligent but

on the other hand in the disciplinary

proceedings it is contended that its own driver

was rash and negligent. It is required for any

litigant more so an instrumentality of the state

to adhere to one set of facts and not change

the set of facts depending on its convenience

and/or requirements.

12.12 Despite the existence of the fax dated

26.07.2015, of the Divisional Cum Controller to

the Managing Director, and the report of the

Deputy Chief Security and Vigilance Officer

dated 05.08.2016, a written statement had

been filed absolving the respondent-driver of

any liability. Once the driver stood absolved by

the said written statement, it is impermissible

for the Road Transport Corporation to initiate

the disciplinary enquiry.

12.13 It was for the respondent, Road Transport

Corporation to have come clean and clearly and

categorically stated in M.V.C.Nos.3282 &

3283/2015 that it was the driver's fault for

driving the vehicle in a rash and negligent

manner and offered to make payment of the

compensation due in the said proceedings. It is

only in order to try and escape the payment of

compensation that a false stand has been taken

by the Road Transport Corporation, which is

established to be false by the contents of the

present writ petition as also by the M.A.C.T. in

its order dated 08.09.2016 in the aforesaid

M.V.Cs.

12.14 It is also relevant to take note that not only was

the precious time of the M.A.C.T. wasted by

taking the said false defence offered by the

Road Transport Corporation, but more

importantly, the victim of the road accident was

denied, immediate relief, and succour by way of

payment of compensation. The said payment

being delayed until the finding being rendered

by the M.A.C.T. after evidence being led. These

kind of actions on part of the Road Transport

Corporation are required to be deprecated and

are deprecated.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

WRIT PETITION NO. 24370 OF 2019 (L-KSRTC)

BETWEEN:

THE KARNATAKA STATE ROAD TRANSPORT

CORPORATION  Vs SRI GANGANNA

BEFORE

 MR JUSTICE SURAJ GOVINDARAJ

DATED THIS THE 13TH DAY OF SEPTEMBER, 2022

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Is it necessary to obtain permission to file a written statement after setting aside an exparte order?

 The order passed by the learned Trial Court condoning the delay and setting aside the exparte decree has been confirmed by the High Court by passing the impugned judgment and order. However, the High Court has observed that on setting aside the exparte

decree and restoring the suit to file, defendant Nos. 2 and

3 cannot be permitted to file the written statement.

Reliance is placed upon the decisions of this Court in the

case of Sangram Singh (supra) and Arjun Singh (supra).

However, it is true that as per the law laid down by this

Court in the case of Sangram Singh (supra) and Arjun

Singh (supra) when an exparte decree is set aside and the

suit is restored to file, the defendants cannot be relegated

to the position prior to the date of hearing of the suit when

he was placed exparte. He would be debarred from filing

any written statement in the suit, but then he can participate in the hearing of the suit inasmuch cross-examine the witness of the plaintiff and address arguments. However, in our view, in the facts and circumstances of the case, the decisions of this Court in

the case of Sangram Singh (supra) and Arjun Singh (supra) shall not be fully applicable. In the present case by filing the CMA under Order IX Rule 13, appellants herein – original defendant Nos. 2 and 3 not only prayed to set aside the exparte decree but also prayed to allow them to file written statement. As observed above, there was no order and/or decision by the learned Trial Court on the second prayer, namely, to allow defendant Nos. 2 and 3 to file written statement or not. Therefore, once the expartedecree is set aside and the suit is restored to file and even

as per the decisions of this Court in the case of Sangram

Singh (supra) and Arjun Singh (supra) the defendants

cannot be relegated back to the position prior to the date

of hearing of the suit in that case also, it should have been

left to the learned Trial Court to consider the prayer of

defendant Nos. 2 and 3 whether to allow them to file

written statement or not, which was also prayed in CMA

No. 31/2018.

As observed hereinabove, there was no order passed by

the learned Trial Court on the specific prayer made by

defendant Nos. 2 and 3 to allow them to file written

statement. The learned Trial Court while passing order

dated 05.12.2019 condoned the delay and set aside the exparte

decree and the said order of condonation of delay and setting aside the exparte decree was the subject matter before the High Court. Therefore, the further observations made by the High Court that defendant Nos. 2 and 3 cannot be permitted to file their written statement can be said to be beyond the scope and ambit of the CMP filed before the High Court. Under the circumstances, the impugned judgment and order passed by the High Court to the extent of observing that defendant Nos. 2 and 3 cannot be permitted to file their written statement is

unsustainable and the issue/question whether defendant

Nos. 2 and 3 may be allowed to file their written statement

or not, shall have to be remanded to the learned Trial

Court.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3641 OF 2022

Sudhir Ranjan Patra (Dead) thr. LRs. & Anr. Vs Himansu Sekhar Srichandan & Ors.

Author: M. R. Shah, J.

Dated: 17th May, 2022

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Whether the appellant can take the plea of non-maintainability of the suit in the appeal if he has not taken said plea in the written statement?

 In so far as the first point of determination is concerned, it

is an admitted position that no such objection to the institution of

the suit was ever taken by the Appellant in their, otherwise detailed, written statement. Order VIII, Rule 2 of the CPC, provides that the defendant must raise by his pleading, all matters which show the suit not to be maintainable. If objection to the non-maintainability of the suit were to be raised by the appellant their written statement in the first place or even by amending the written statement, the Respondent would have had an opportunity to meet with such objection. The mere fact that some questions were posed to Mr. C. D. Chitnis (PW.1) in the course of his cross examination, is not sufficient to conclude that the Respondent was not taken by surprise or was not likely to be taken by surprise. Order 8, Rule 2 of CPC, as noted earlier, inter alia, provides that the Defendant must raise by his pleading all matters which show the suit not to be maintained and all grounds of defence, if not raised, would be likely to take the opposite party by surprise, or would raise the issues of

fact, not arising out of the plaint. Ordinarily, therefore, the

Appellant ought not to be allowed to raise such objection at the

appellate stage. {Para 19}

IN THE HIGH COURT OF BOMBAY AT GOA

FIRST APPEAL NO. 123 OF 2013

The New India Assurance Co. Ltd.  Vs  Messrs Sesa Goa Ltd.,

Coram : M.S. Sonak &

Smt. M.S. Jawalkar, JJ.

Pronounced on : 16th January, 2020

J U G M E N T : (Per M.S. SONAK, J.)

Citation: 2020(5) MHLJ 66

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Whether the court should set aside an exparte eviction decree if the tenant fails to file his written statement in the suit despite several chances?

1)  The S.S.C case No.4 of 1994 was filed

by the landlord on 18.03.1994 claiming possession,

rent and mesne profit. The landlord’s case was that

the notice was given on 24.12.1993 demanding the

amount of rent, due rent, profit etc. Thereafter

the S.C.C. Case No.4 of 1994 was filed in the Court

of Additional Civil Judge, Senior Division,

Roorkee. On 14.07.1994, the tenant was served

summons. He prayed time to file a written Statement

till 24.08.1994. The tenant filed an application

under Section 10 CPC to stay the suit as well as

the application under Order VII Rule 11 CPC. Both

applications were rejected and the Court allowed

fifteen days time to file a written statement and

fixed 16.10.1995 for hearing. On 16.10.1995, the

tenant again took time but did not file a written

statement. Several other opportunities were given

to the tenant to file a written statement in which

he failed. On 24.02.1997, Court passed an order to

proceed exparte.

2) Application under Order 9 Rule 13 can be allowed only

 when sufficient cause is made out to set aside the exparte

decree. The present is a case where no sufficient cause 

was made out to set aside the exparte decree.

48. As noted above, the tenant had unsuccessfully

challenged the orders passed by the trial court on

24.02.1997 and 18.03.1997 to proceed exparte.

The application of the tenant to recall the orders

dated 24.02.1997 and 18.03.1997 was rejected by the

trial court with a clear finding that the tenant

wants to delay the case regularly because he is the

tenant and getting benefit of the property. The

application of the tenant was held to be mala fide.

49. The High Court without even adverting to the

earlier order of the trial court dated 16.05.1997,

where categorical findings had been recorded

against the tenant, choose to allow the application

under Order 9 Rule 13 filed by the tenant to recall

exparte decree, which cannot be said to be correct

exercise of jurisdiction under Article 226 of the

Constitution.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.802-803 of 2021

SUBODH KUMAR  Vs  SHAMIM AHMED 

Author: ASHOK BHUSHAN, J.

Dated: March 03, 2021.

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Bombay HC: Commercial court should not set aside no written statement order by condoning the delay of 103 days in suit transferred from regular court to commercial court

 The issue raised in this petition is, as to "whether a suit transferred from the regular Court to the Commercial Court, in view of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter referred to as 'the Act'), would enable the Commercial Court to set aside the "No WS" Order by condoning delay of 103 days."

15. I find that, section 15(3) reproduced above would clearly indicate that the Commercial Court takes over the commercial suit after transfer and proceeds thereafter under the scheme of the Act. The very purpose and object of establishing the Commercial Courts, was to ensure that, the delay is eliminated and a speedy trial is achieved. There is no provision permitting the Commercial Court to move backwards and revert to an earlier stage for overcoming a legal impediment and then again leap forward. If the Commercial Court is to go backwards to set aside the "No WS" Order and then move forward by taking such a WS on record, it would defeat the very purpose for which the Act was introduced.

 In Mira Gehani, in paragraph No. 89, this Court has concluded that the Apex Court in catena of decisions has held that, considerations of equity cannot be ground/reason/justification not to follow the law, as is laid down by the legislature. In paragraph 91, this Court then concluded that, the aforesaid judgments merely indicate that, no matter, how harsh the result, if a statute stipulates that, an act must be performed within a certain period of time, and provides for no exceptions, then the Courts must not allow such an act to be performed after the expiry of the time mandated by the statute directly or indirectly.

31. In the backdrop of the law, as is settled, if the contentions of the petitioners is accepted, that even if the suit has been transferred, after the "no WS" order is passed and when no application is pending, would not preclude the Commercial Court to set aside the "no WS" order and permit filing of the written statement, this would completely nullify the intent and object of the legislature in introducing the commercial Courts Act. The Commercial Court would then be bestowed with the status of a "non-commercial Court", which is impermissible in law.

32. In view of the above, this Petition, being devoid of merit, is therefore, dismissed.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

W.P. No. 7520 of 2019

Decided On: 01.08.2019

Raj Process Equipments and Systems Pvt. Ltd. and Ors. Vs.

Honest Derivatives Pvt. Ltd.

Hon'ble Judges/Coram:

R.V. Ghuge, J.

Citation: MANU/MH/3846/2019,2020(2) MHLJ 78.

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Whether pendency of an application for rejection of plaint operates as stay to filing of written statement?

A perusal of the impugned order shows that the time for filing of the written statement has been granted without taking into consideration the provisions of Order VIII CPC. Under the provisions of Order VIII CPC, non-filing of the written statement within time entails consequences in law. The pendency of an application under Order VII Rule 11 CPC, does not operate as an automatic stay upon filing of the written statement. In fact, the settled legal position is that the written statement should be filed irrespective of an application under Order VII Rule 11 CPC being pending. This is clear from the judgment of the Supreme Court dated 4th July 2016, in R.K. Roja v. U.S. Rayadu and Ors., MANU/SC/0751/2016 : AIR 2016 SC 3282) where the Supreme Court held:

"7. In Saleem Bhai case (supra), this Court has also held that..."A direction to file the written statement without deciding the application under Order VII Rule 11 cannot but be a procedural irregularity touching the exercise of jurisdiction of the trial court." However, we may hasten to add that the liberty to file an application for rejection under Order VII Rule 11 of the Code of Civil Procedure cannot be made as a ruse for retrieving the lost opportunity to file the written statement."

The Supreme Court, has recently reiterated this principle in judgment dated 18th September 2020, titled Sagufa Ahmed and ors. v. Upper Assam Plywood Products Pvt. Ltd. (Civil Appeal No. 3007-08/2020). The Court was considering the impact of the pandemic and the automatic extension of limitation and the manner in which the same is to be applied. The Supreme Court held:

"19. But we do not think that the appellants can take refuge under the above order. What was extended by the above order of this Court was only "the period of limitation" and not the period up to which delay can be condoned in exercise of discretion conferred by the statute. The above order passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. It is needless to point out that the law of limitation finds its root in two Latin maxims, one of which is Vigilantibus Non Dormientibus Jura Subveniunt which means that the law will assist only those who are vigilant about their rights and not those who sleep over them."

9. The provisions of Order VIII CPC provide a complete timeline and scheme for filing of the written statement. The said scheme would have to be followed. There are certain conditions that have to be satisfied for a party to seek condonation of delay in filing the written statement. The non-filing of the written statement within the time prescribed has consequences in law for parties. The grant of a further extension of time, in a casual manner simply upon an oral request without an application thereto being filed and explaining the delay in filing the written statement, would be contrary to law. Even the lockdown due to the pandemic can only extend the original period of limitation and not the period up to which delay can be condoned.

 IN THE HIGH COURT OF DELHI

C.R.P. 63/2020 and CM Appl. 23570/2020

Decided On: 23.09.2020

 Shyam Sunder Vs.  Shikha Arora 

Hon'ble Judges/Coram:

Prathiba M. Singh, J.

Citation: MANU/DE/1783/2020

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Whether a defendant can challenge finding given by the court on the issue raised by him in his written statement?

Mainly, it is contended by Sri Vikas Singh, learned senior Counsel for the Appellant-Defendant, that the Trial Court and the First Appellate Court committed an error in deciding the rights of parties in respect of the common areas in the ground floor, when the suit itself was filed, confined to the partition of second floor and terrace rights. 

8. On the other hand, Sri P.S. Patwalia, learned senior Counsel appearing for the Respondent, has submitted that it was the Appellant-Defendant, who in the written statement had raised a dispute in respect of common areas, as such the Trial Court has framed the issue on the common areas and decided the same. It is further submitted that having regard to pleadings and evidence on record, the Trial Court as well as the Appellate Court, have rightly decided the claim of the Appellant-Defendant in respect of the common areas also and there are no grounds to interfere with the same.

9. It is true that the suit filed by the Respondent-Plaintiff is only for partition and permanent injunction with regard to second floor portion of the house and the terrace rights, but it is the Appellant-Defendant who has raised the dispute with regard to common areas in the suit property in terms of paragraph 14 of the written statement. 

10. The Trial Court, had to frame an issue in view of the claim made by the Appellant-Defendant in respect of the common areas also. Having raised the dispute of the common areas, when such claim is considered by framing an issue, which we find in accordance with the pleadings and evidence on record, it is not open for the Appellant-Defendant to plead that directions issued in the impugned judgment, are beyond the scope of the suit.

11. Having invited findings by raising a dispute of the common areas, the Appellant-Defendant cannot plead that the Trial Court as well as the Appellate court have exceeded scope of the suit, in issuing directions for the common areas.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1899-1900 of 2020 

Decided On: 02.03.2020

Sajan Sethi  Vs.  Rajan Sethi

Hon'ble Judges/Coram:

Mohan M. Shantanagoudar and R. Subhash Reddy, JJ.

Author:R. Subhash Reddy, J.
Citation:(2020) 4 SCC 589

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Whether the court should consider defence taken by the defendant in his written statement if he fails to participate in the proceeding subsequently?

 The counsel for the appellant/defendant has contended that the suit was not maintainable owing to this Court lacking territorial jurisdiction to entertain the suit. Attention of this court is invited to the paragraph in the written statement filed, objecting to territorial jurisdiction.

14. Attention of the counsel for the appellant/defendant has however been invited to Section 21 of the CPC which bars any objection as to the place of suing being allowed by the Appellate Court unless such objection was taken in the Court at first instance at the earliest possible opportunity and where issues are settled, on or before such settlement and unless there has been a consequent failure of justice. The appellant/defendant though claims to have taken an objection in the written statement but gave up his defence including the said objection by choosing not to participate in the suit and did not claim any issue qua its objection of territorial jurisdiction and did not contest the territorial jurisdiction as pleaded by the respondent/plaintiff. The appellant/defendant now in this appeal is not entitled to raise the plea of territorial jurisdiction.

IN THE HIGH COURT OF DELHI

RFA (OS) 10/2020 and CM Nos. 3551 and 3553/2020

Decided On: 13.03.2020

 Bharat Bhogilal Patel  Vs.   Nokia Corporations and Ors.

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw and Sangita Dhingra Sehgal, JJ.

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Whether court can proceed with trial without deciding application for rejection of plaint?

We are afraid that the stand taken by the High Court in the impugned order cannot be appreciated. An application under Order VII Rule 11 of the Code of Civil Procedure can be filed at any stage, as held by this Court in Sopan Sukhdeo Sable and Ors. v. Assistant Charity Commissioner and Ors. MANU/SC/0071/2004 : (2004) 3 SCC 137... "The trial court can exercise the power at any stage of the suit - before registering the plaint or after issuing summons to the Defendant at any time before the conclusion of the trial. ...". The only restriction is that the consideration of the application for rejection should not be on the basis of the allegations made by the Defendant in his written statement or on the basis of the allegations in the application for rejection of the plaint. The court has to consider only the plaint as a whole, and in case, the entire plaint comes under the situations covered by Order VII Rule 11(a) to (f) of the Code of Civil Procedure, the same has to be rejected.

6. Once an application is filed under Order VII Rule 11 of the Code of Civil Procedure, the court has to dispose of the same before proceeding with the trial. There is no point or sense in proceeding with the trial of the case, in case the plaint (Election Petition in the present case) is only to be rejected at the threshold. Therefore, the Defendant is entitled to file the application for rejection before fling his written statement. In case, the application is rejected, the Defendant is entitled to file his written statement thereafter (See Saleem Bhai and Ors. v. State of Maharashtra and Ors. MANU/SC/1185/2002 : (2003) 1 SCC 557). But once an application for rejection is filed, the court has to dispose of the same before proceeding with the trial court. To quote relevant portion from paragraph-20 of Sopan Sukhdeo Sable case (supra):

20. ...Rule 11 of Order 7 lays down an independent remedy made available to the Defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word "shall" is used, clearly implying thereby that it casts a duty on the court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the Defendant....

7. In Saleem Bhai case (supra), this Court has also held that ... "A direction to file the written statement without deciding the application under Order VII Rule 11 cannot but be a procedural irregularity touching the exercise of jurisdiction of the trial court." However, we may hasten to add that the liberty to file an application for rejection under Order VII Rule 11 of the Code of Civil Procedure cannot be made as a ruse for retrieving the lost opportunity to file the written statement.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5540 of 2016 

Decided On: 04.07.2016

 R.K. Roja Vs. U.S. Rayudu and Ors.

Hon'ble Judges/Coram:

Kurian Joseph and Rohinton Fali Nariman, JJ.

Citation:AIR 2016 SC 3282,(2016)14 SCC 14

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Leading judgment of Supreme Court on filing of written statement

Civil Procedure Code, 1908-- Order 8 Rule 1--Delay in filing written statement--Condonation--Permissibility of--Held--Order 8 Rule 1 C.P.C. are not mandatory but directory--Hence delay can be concluded and w.s. can be accepted even after expiry of period of 90 days from the date of Service of summons in exceptionally hard cases. [Para--7 and 8]

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2360 of 2008 

Decided On: 01.04.2008

Zolba Vs. Keshao and Ors.

Hon'ble Judges/Coram:

Tarun Chatterjee and H.S. Bedi, JJ

Citation: (2008) 11 SCC 769

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Whether defendant can raise plea of hardship in suit for specific performance of contract if he has not raised it in his written statement?

Now so far as the submission on behalf of the appellant
that if the decree for specific performance of the contract is
passed after number of years, it would cause undue hardship to

the defendant – vendor and the reliance placed upon the decision
of this Court in the case of P.R.Deb (supra) is concerned, it is
required to be noted that in the written statement the defendant
has not pleaded any hardship to be caused if the decree of
specific performance of the contract is passed against the
defendant – vendor. At this stage, the decision of this Court in
the case of A. Maria Angelena v. A.G. Balkis Bee, reported in AIR
2002 SC 2385 is required to be referred to. In the aforesaid case,
the vendor sought to raise the plea of hardship for the first time
before this Court and this Court did not permit the vendor to
raise such a plea of hardship by observing that as no plea as to
hardship if relief for specific performance is granted was raised by
the defendant – vendor in written statement nor any issue was
framed that the plaintiff – purchaser could be compensated in
terms of the money in lieu of decree for specific performance,
such plea cannot be entertained for the first time in appeal by
way of SLP, more so, when there are concurrent findings that the
plaintiff was ready and willing to perform his part of the contract
has been recorded by the lower courts. Therefore, the plea raised
on behalf of the vendor on hardship cannot be permitted to be

raised now, more particularly when no such plea was
raised/taken in the written statement.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 45374538
OF 2017

BEEMANENI MAHA LAKSHMI  Vs GANGUMALLA APPA RAO

Dated:MAY 09, 2019.
M.R. SHAH, J.

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When order passed in previous suit will not be res judicata in subsequent suit?

An issue of law which arises between the same parties in a subsequent suit or proceeding is not res judicata if, by an erroneous decision given on a statutory prohibition in the former suit or proceeding, the statutory prohibition is not given effect to. This is despite the fact that the matter in issue between the parties may be the same as that directly and substantially in issue in the previous suit or proceeding. This is for the reason that in such cases, the rights of the parties are not the only matter for consideration (as is the case of an erroneous interpretation of a statute inter parties), as the public policy contained in the statutory prohibition cannot be set at naught. This is for the same reason as that contained in matters which pertain to issues of law that raise jurisdictional questions.

SUPREME COURT OF INDIA

M/s. SCG Contracts India Pvt. Ltd. Vs. K.S. Chamankar Infrastructure Pvt. Ltd. & Ors.

[Civil Appeal No. 1638 of 2019 arising out of Special Leave Petition (C) No. 103/2019]

R.F. Nariman, J.

Dated:February 12, 2019.

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Whether court should permit filing of written statement even after delay of twelve years?

It is true that there is inordinate and enormous delay of 12 years. The reason given therefor also may not be strictly speaking sufficient to condone the delay but then the substantive cause of justice requires that the matter should be decided on merits, especially when during all these 12 years, no progress is made in the suit. It is not that the suit is decided or is at advance stage of hearing, so that prejudice would be caused to the respondent, if the written statement is permitted to be brought on record. Therefore, if the written statement is allowed to be brought on record, the matter can be decided on merits instead of being decided on technical grounds. Hence, considering peculiar facts of this case only, the delay deserves to be condoned and the written statement needs to be brought on record.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 13339 of 2017

Decided On: 22.03.2018

Adamji Gulamhussein Tavawalla Vs  Maria Emillia Vaz and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2019(1) MHLJ 675

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