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2005 DIGILAW 862 (KAR)

Shahir Patil v. Amruth Jagade

2005-12-21

AJIT J.GUNJAL

body2005
ORDER 1. Even though the matter is listed for preliminary hearing, with consent of both the counsel, this matter is taken up for final disposal. 2. The matter arises in the following manner : Plaintiff-respondent has filed a suit for declaration of title and for injunction in respect of the suit schedule property in O. S. No. 403/97. The said suit was accompanied by an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure for injunction pending disposal of the case. It appears, the learned Trial Judge granted an order of injunction as against which the petitioner-defendant filed an appeal in M. A. No. 70/79 on the file of the Civil Judge, Gulbarga. The records of the suit were called for by the Appellate Court and eventually the appeal filed by the petitioner was dismissed. The records were sent back to the Trial Court. The defendant-petitioner was called upon to file his written statement on 16-11-2004. But, however, it appears the defendant-petitioner could not file his written statement on the said date, but filed it on the next adjourned date i.e., on 19-11-2004. The said written statement was filed along with an application explaining the delay and under what circumstances he could not file his written statement within the stipulated time. Annexure-B is the copy of the application. The learned Civil Judge pursuant to Annexure-D has rejected the application as well as the written statement on the ground that no justifiable reasons are available to allow the said application. According to him, the defendant-petitioner was served in the suit sometime in the year 1997 and the written statement is filed in the year 2004. He was of the opinion that the time granted under Order 8, Rule 1 of Code of Civil Procedure is mandatory in nature and Courts have no power to extend the time to file the written statement. 3. Mr. Mrutyunjay Tata Bangi, learned counsel appearing for the defendant-petitioner would contend that the affidavit filed by the defendant-petitioner in support of the application, clearly discloses that the matter was being pursued by the defendant-petitioner in the appellate Court. He would also further submit that after the appeal was disposed of on 11-10-2004, the records were sent back to the trial Court and time was granted by the learned trial Judge to file his written statement on 16-11-2004. He would also further submit that after the appeal was disposed of on 11-10-2004, the records were sent back to the trial Court and time was granted by the learned trial Judge to file his written statement on 16-11-2004. In the circumstances, he submits that the delay, if any, is to be reckoned from 16-11-2004 and seeks acceptance of written statement. 4. Mr. Naragund, learned counsel for the plaintiff-respondent seriously objects to the assertions of the petitioner. He would submit that the laches on the part of the defendant-petitioner in filing the written statement within the stipulated time as contemplated under Order 8, Rule 1 of the Code of Civil Procedure cannot be condoned. He submits that the defendant-petitioner was served with the summons in the proceedings sometime in the year 1997 and the fact that he was pursuing the appeal does not necessarily enlarge the time in filing the written statement. According to him, the delay has to be reckoned from the date of service of summons and the said enormous delay cannot be excused. 5. I have given my anxious consideration to the submissions of both the counsel. Apparently, it is to be noticed that an order of injunction was granted by the trial Court which was being agitated by the defendant-petitioner in an appeal M. A. No. 70/97. The affidavit would disclose that the said appeal was disposed of on 11-10-2004 and during this interregnum between the inception of the appeal and the disposal of the appeal, the records were called for by the appellate Court and the matter was seized by the appellate Court. In these circumstances, the explanation offered in the affidavit is that after the appeal was disposed of, the records were sent back and thereafter, the learned trial Judge, on receipt of the records adjourned the case for filing of the written statement to 16-11-2004. Even on 16-11-2004, the defendant-petitioner could not file his written statement. However, on 19-11-2004, the explanation is offered as to why the written statement could not be filed earlier or on the date fixed by the learned trial Judge. It is stated in the affidavit that the written statement was kept ready on 16-11-2004 but due to some urgent work the deponent —defendant-petitioner was out of station and he could not file the same on that day and, therefore, the delay has occurred in filing the written statement. It is stated in the affidavit that the written statement was kept ready on 16-11-2004 but due to some urgent work the deponent —defendant-petitioner was out of station and he could not file the same on that day and, therefore, the delay has occurred in filing the written statement. The Apex Court in several cases has held that the time stipulated for filing of written statement under Order 8, Rule 1 of the Code of Civil Procedure is no longer mandatory if it is for valid reasons and therefore it would necessarily mean that the power of the Court to extend the time beyond the stipulated period of 90 days is not at all taken away. 6. In view of the pronouncement of the Apex Court, I am of the view that the time to file the written statement will have to be reckoned from the date of return of the records from the appellate Court. This Court, in the case of Vasanth Satyanarayana Hegde v. The Managing Director Karnataka Neeravari Nigama Ltd. and others reported in ILR 2005 Kant 5796 : (2005 AIR - Kant HCR 3021) has stated that the exceptional circumstances as enumerated by the Apex Court vary from one case to another and nothing positively can be stated what are those exceptional circumstances. In the facts and circumstances of each case exceptional circumstances are to be viewed. Ultimately, one will have to be pragmatic and take the overall situation into consideration while extending time to file the written statement. There cannot be a straitjacket formula as to what are the exceptional circumstances. 7. In view of what is stated above, I am of the view that the delay in filing the written statement will have to be excused. But, however, the learned trial Judge has recorded a finding that the written statement is being filed after the expiry of the extended statutory period. Hence, the plaintiff-respondent will have to be compensated. 8. For the reasons stated above, the petition stands allowed. The impugned order at Annexure-D dated 21-6-2005 is set aside. The application filed by the defendant-petitioner seeking permission to file the written statement stands allowed. The learned trial Judge shall take the written statement on record and dispose of the matter in accordance with law. The costs in the proceedings are quantified at Rs. The impugned order at Annexure-D dated 21-6-2005 is set aside. The application filed by the defendant-petitioner seeking permission to file the written statement stands allowed. The learned trial Judge shall take the written statement on record and dispose of the matter in accordance with law. The costs in the proceedings are quantified at Rs. 6,000/- payable by the defendant-petitioner to the plaintiff-respondent in the trial Court within a period of six weeks from today. It is only on payment of such costs, the trial Judge shall take the written statement on record and if the amount is not paid within the stipulated time, the order rejecting the written statement shall stand revived. 9. Since the suit is of the year 1997, the learned trial Judge shall dispose of the suit within a period of six months from the date of receipt of a copy of this order. 10. Order accordingly.