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2008 DIGILAW 1769 (BOM)

Shalini Nunes Mascarnehas v. Trevor Nunes

2008-12-17

A.P.LAVANDE

body2008
Judgment A.P. Lavande, J. Heard Ms. Kantak, learned counsel for the petitioners and Mr. S. Bharne, for the respondents. 2. Rule. 3. By this petition, the petitioners challenge order dated 29.4.2008 passed by Ad-hoc Civil Judge Senior Division, "B" Court, Panaji in Regular Civil Suit No. 102/2007/B by which the learned Judge has refused to take on record the written statement filed by the petitioners. 4. The petitioners are the plaintiffs in the above suit filed against the respondents. On 2.2.2008, the defendants filed written statement in the suit and also filed counter-claim. Thereafter, the matter was fixed on 18.2.2008. The plaintiffs sought time to file written statement. The learned Judge stated that the written statement had to be filed within limitation and the matter was adjourned to 2.4.2008 and again an application seeking time to file written statement was filed before next date of hearing and the matter was fixed on 29.4.2008. The plaintiffs lodged written statement to the counter-claim with the clerk of the Court on 18.4.2008. By the impugned order, the trial Court has refused to take the same on record. On the ground that it was filed beyond the period of limitation and in breach of the provisions under Order VIII, Rule 1 of CPC. 5. Ms. Kantak, learned counsel for the petitioners placed reliance on Order VIII. Rule 6A (3) of Civil Procedure Code which states that in case the counter-claim is filed by the defendants, the plaintiffs shall be at liberty to file written statement to the counter-claim of the defendants within such period as may be fixed by the Court. Learned counsel submitted that as far as the written statement to the counter-claim is concerned, Order VIII, Rule 1 is not applicable and in such a case, the plaintiffs are entitled to file written statement within the time fixed by the Court. According to learned counsel the trial Court while granting time to file written statement to the plaintiffs on 18.2.2008, presumed that the same was governed by Order VIII, Rule 1 of CPC. The learned counsel therefore, submitted that the impugned order, which would cause serious prejudice to the plaintiffs/petitioners be set aside and the written statement filed by the plaintiffs to the counter-claim filed by the plaintiffs, be taken on record. 6. Per contra Mr. The learned counsel therefore, submitted that the impugned order, which would cause serious prejudice to the plaintiffs/petitioners be set aside and the written statement filed by the plaintiffs to the counter-claim filed by the plaintiffs, be taken on record. 6. Per contra Mr. S. Bharne, for the respondents submitted that the written statement to the counter-claim has to be filed within 30 days in terms of Order VIII, Rule 1 of the CPC, and therefore, the impugned order cannot be faulted. 7. Having considered the submissions made by the learned counsel for the respondent and having perused the record, I find that the impugned order is liable to be set aside. Ms. Kantak is justified in placing reliance on Order VIII, Rule 6A (3), in support of her submission that the written statement to the counter-claim, is not governed by Order VIII, Rule 1 of CPC, but it is governed by Order VIII, Rule 6A (3) of CPC. In terms of the said sub rule, the trial Court is expected to fix time for filing the written statement to the counter-claim. The necessary conclusion therefore, is that Order VIII, Rule 1 of CPC, is not applicable to the written statement filed by the plaintiffs to the counter-claim filed by the defendants. In the present case, the learned Judge directed filing of the written statement within period of limitation without specifying the time. In this factual background, I am of the considered opinion that it would be in the interest of justice to take written statement filed by the petitioners on record. Accordingly, the impugned order refusing to take written statement on record, is quashed and set aside, subject to the petitioners paying costs of Rs.1,000/- to the respondents. The costs shall be deposited in the trial Court within a period of three weeks. The trial Court shall take on record the written statement filed by the petitioners and proceed to dispose of the suit in accordance with law. 8. Rule is made absolute in aforesaid terms. Petition allowed.