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2021 DIGILAW 1779 (BOM)

Samraj Construction v. Vijayalaxmi Suresh

2021-12-17

MANISH PITALE

body2021
JUDGMENT MANISH PITALE,J. 1. By this writ petition, the Petitioner has challenged order dtd. 7/9/2021 passed by the Court of Ad-hoc Senior Civil Judge, Mapusa, whereby an application for condonation of delay in filing written statement has been dismissed. 2. The Respondent in the present case has filed a suit for declaration and permanent injunction against the Petitioner. On 22/10/2016, the Petitioner was served with summons in the said suit and as per the relevant provision of law, the extended time for filing written statement expired on 18/1/2017. 3. On 17/2/2017, the Petitioner filed an application for rejection of plaint and on the same day filed an application for extension of time to file written statement. The roznama shows that the application for extension of time to file written statement was merely kept in the file of the proceedings and no specific order was passed thereon. 4. On 31/10/2019, the application for rejection of plaint was dismissed and the roznama shows that the case was adjourned to 17/12/2019, for filing of written statement. On the said date, an application was moved on behalf of the Petitioner seeking time to file written statement on the ground of unavailability of the Petitioner. On the same day i.e. 17/12/2019, the Court below rejected the application, taking note of the fact that the time to file written statement was already over. The Court adjourned the case to 15/2/2020. On this day, the Petitioner moved an application for condonation of delay in filing written statement, inter alia, contending that when the Petitioner intended to challenge the order dtd. 17/12/2019, it was advised to file the application for condonation of delay in filing written statement and to place the written statement on record before the Court below. 5. By the impugned order dtd. 7/9/2021, the Court below has dismissed the application for condonation of delay in filing the written statement on the basis that sufficient ground was not made out for condonation of delay. 6. Aggrieved by the said order, the Petitioner approached this Court by filing the present writ petition, wherein notice was issued for final disposal returnable on 16/12/2021. The Respondent has entered appearance through Counsel. 7. Heard learned Counsel for the respective parties and perused the material on record. 8. Mr. 6. Aggrieved by the said order, the Petitioner approached this Court by filing the present writ petition, wherein notice was issued for final disposal returnable on 16/12/2021. The Respondent has entered appearance through Counsel. 7. Heard learned Counsel for the respective parties and perused the material on record. 8. Mr. Raghunandan, learned Counsel appearing for the Petitioner submits that the Court below adopted a hyper-technical approach in the matter and by placing emphasis on procedural aspects of the matter, ignored substantial justice to be done between the parties. It was submitted that in the absence of the written statement on behalf of the Petitioner, there would be no pleadings on record due to which the Petitioner would not be able to lead evidence and the Respondent would have the advantage of the suit being decided in a one-sided manner. It was submitted that the Hon'ble Supreme Court held in the cases of Kailash v. Nanhku (2005) 4 SCC 480 and Salem Advocate Bar Association, Tamil Nadu v. Union of India (2005) 6 SCC 344 , laid down that the period of 90 days for filing written statement was directory and not mandatory. On this basis, it was submitted that the facts in the present case sufficiently explained that the Petitioner was entitled to place the written statement on record, so that the suit could proceed on merits. 9. It was submitted that the roznama shows that on 31/10/2019, after dismissal of the application for rejection of plaint, the Court below itself had adjourned the case for filing of written statement. Therefore, the delay in filing the written statement ought to be calculated from the said date. Since the Petitioner did file the application for condonation of delay along with the written statement on 15/2/2020, the delay was about 108 days, although it was erroneously mentioned in the application as 138 days. It was submitted that the explanation given in the application for condonation of delay was not considered in the correct perspective by the Court below, resulting in gross miscarriage of justice. On this basis, it was submitted that the petition be granted. 10. Mr. It was submitted that the explanation given in the application for condonation of delay was not considered in the correct perspective by the Court below, resulting in gross miscarriage of justice. On this basis, it was submitted that the petition be granted. 10. Mr. Parag Rao, learned counsel appearing for the Respondent submits that although the requirement of filing written statement within 90 days is held to be directory in nature, subsequent Judgments of the Hon'ble Supreme Court have clarified that the Courts should not indiscriminately extend the time for filing of written statement as it would amount to defeating the object sought to be achieved by the amendments made in the Code of Civil Procedure (CPC). Attention of this Court was invited to Judgments of the Hon'ble Supreme Court in the case of R.N. Jadi and Brothers v. Subhashchandra (2007) 6 SCC 420 and Atcom Technologies Limited v. Y.A. Chunawala and Company (2018) 6 SCC 639 , to contend that no case was made out in the present case for interference with the impugned order. It was submitted that the record demonstrated a casual approach adopted by the Petitioner and that therefore, the writ petition deserved to be dismissed. In the alternative, the learned Counsel appearing for the Respondent submitted that exemplary costs ought to be imposed on the Petitioner, if at all the writ petition was to be allowed. 11. The material on record indicates that while the Petitioner was served with summons on 22/10/2016, the written statement was admittedly not filed within the extended period of 90 days available under the CPC. The written statement was admittedly placed on record along with the application for condonation of delay on 15/2/2020. The Petitioner had filed the application for rejection of plaint dtd. 17/2/2017 and on the same day an application was filed to extend the time to file written statement. It is an admitted position that no orders were passed on the application for extension of time to file written statement. The Petitioner had filed the application for rejection of plaint dtd. 17/2/2017 and on the same day an application was filed to extend the time to file written statement. It is an admitted position that no orders were passed on the application for extension of time to file written statement. Although the learned Counsel appearing for the Respondent has contended that it was for the Petitioner to make sure that the application for extension of time to file written statement was taken up for consideration and appropriate orders were passed, no such effort was made on the part of the Petitioner, this Court is of the opinion that it was equally important for the Court below to have taken up the said application, for the reason that it was indeed considering the application for rejection of plaint filed by the Petitioner. 12. The application for rejection of plaint was dismissed on 31/10/2019. A perusal of the roznama shows that on the said date, after passing the order dismissing the application for rejection of plaint, the proceedings were adjourned for filing written statement to 17/12/2019. Since the Court below adjourned the case for filing of written statement on 31/10/2019, it would be appropriate to consider the question of delay in filing the written statement from the said date. The roznama further shows that when the case was taken up on the adjourned date i.e. 17/12/2019, an application was moved on behalf of the Petitioner seeking time to file written statement. This application was rejected by the Court below and admittedly, no challenge was raised against the said order. While rejecting the said application, the Court below adjourned the case to 15/2/2020, for production/inspection of documents and issues. 13. It is at this stage i.e. on 15/2/2020, that the Petitioner moved the aforesaid application for condonation of delay in filing the written statement along with the written statement to be placed on record before the Court below. The dates in the roznama would show that even if the delay is to be calculated from 31/10/2019, when the Court below itself adjourned the case for filing written statement, the delay comes to about 108 days. In order to explain the delay, it was stated in the application for condonation of delay that when the applicant intended to challenge the order dtd. In order to explain the delay, it was stated in the application for condonation of delay that when the applicant intended to challenge the order dtd. 17/12/2019, dismissing the application for extension of time to file written statement, the Advocate concerned advised the Petitioner to instead approach the Court below with an application for condonation of delay in filing the written statement, by placing the written statement on record of the Court below. 14. The said explanation has been rejected by the Court below by observing that the Petitioner should have shown its bona fide by at least serving a copy of the written statement on the Respondent on 17/12/2019, when it was claimed that the written statement could not be filed because of non-availability of the Petitioner. 15. Considering the facts of the present case, particularly the fact that the Petitioner had indeed filed the application for extension of time to file the written statement on 17/2/2017, on which no order was passed by the Court below and further considering the contents of the roznama, it would be in the interest of justice to proceed on the basis that the time from which the period of delay is to be calculated in the present case starts from 31/10/2019. A perusal of the material on record shows that on the adjourned date i.e. 17/12/2019, the aforesaid application was filed on behalf of the Petitioner seeking further time to file written statement, only on the specious plea that the Petitioner was not available. The said application was rejected on the very same date. It is only thereafter on the adjourned date i.e. 15/2/2020, that the Petitioner filed the application for condonation of delay and tried to place the written statement on record. The explanation given on behalf of the Petitioner on the basis of the advice given by the Advocate has been rejected by the Court below, but, this Court is of the opinion that litigants proceed in matters on the basis of advice given by Advocates and it appears that the Petitioner could have challenged the order dtd. 17/12/2019, passed by the Court below rejecting the application seeking time to file written statement, but for the Advocate advising that the Petitioner should instead approach the Court below by filing the application for condonation of delay in filing written statement. 16. 17/12/2019, passed by the Court below rejecting the application seeking time to file written statement, but for the Advocate advising that the Petitioner should instead approach the Court below by filing the application for condonation of delay in filing written statement. 16. Be that as it may, this Court is of the opinion that since the Hon'ble Supreme Court has held that the time limit specified in the CPC for filing written statement has to be treated as directory and that in each case the Court would have to appreciate the facts and come to a conclusion as regards the entitlement of the defendant to file written statement beyond the period specified, this would necessarily have to be as based on an enquiry as to whether the cause of justice would be advanced if the written statement is permitted to be placed on record. There can be no quarrel with the proposition that the endeavor of Courts has to be to decide the lis between the parties on merits rather than one party taking advantage of a technical default on the part of the other. There can be no doubt about the fact that certain rights do get crystalized in a party when there is a default on the part of the other, but it is for the Court to ultimately balance the interests of the rival parties, in order to ensure that the cause of justice does not suffer. 17. The Hon'ble Supreme Court in the case of R.J. Jadi and Brothers v. Subhashchandra (supra), has indeed laid down that the Courts ought not to indiscriminately extend time for filing written statement on the basis that the time limit specified in the CPC has to be treated as directory, because this would defeat the very object of the amendments that were introduced in the CPC. Similarly, in the case of Atcom Technologies Limited v. Y.A. Chunawala and Company (supra), the Hon'ble Supreme Court has emphasized on the need for the defendant to place on record valid reasons to satisfactorily demonstrate as to why it could not file written statement within the period specified in the CPC. 18. Similarly, in the case of Atcom Technologies Limited v. Y.A. Chunawala and Company (supra), the Hon'ble Supreme Court has emphasized on the need for the defendant to place on record valid reasons to satisfactorily demonstrate as to why it could not file written statement within the period specified in the CPC. 18. In the present case, this Court is of the opinion that the failure on the part of the Petitioner to file written statement within the specified period of time could partly be attributed to pendency of the application for rejection of plaint and also the application for extension of time to file written statement. Although, mere pendency of such applications would not preclude the petitioner from filing written statement, but at the same time, it was the duty of the Court below to have taken up the application for extension of time to file written statement to pass appropriate orders. It is an admitted position that the application for rejection of plaint was dismissed on 31/10/2019 and the delay on the part of the Petitioner deserves to be calculated from the aforesaid date. This Court finds that the Petitioner did adopt a casual approach on 17/12/2019, while seeking time to file written statement, but rejection of the said application on 17/12/2019, could not be immediately challenged due to the advice given by the concerned Advocate. 19. In this backdrop, this Court is of the opinion that the Court below adopted a harsh approach in dismissing the application for condonation of delay in filing written statement. It would be in the interest of both the parties that the dispute is decided on merits and at the earliest. At the same time, inconvenience caused to the respondent cannot be ignored and the same can be compensated by giving appropriate directions by imposing costs on the Petitioner, which would be disbursed to the respondent immediately. 20. This Court is of the opinion that it would be in the interest of justice that an opportunity is granted to the Petitioner to place on record its written statement so that the contest between the parties is on merits and the dispute can be decided finally after the parties are granted ample opportunity to place on record appropriate pleadings and evidence in that regard. 21. In view of the above, the writ petition is allowed. The impugned order is quashed and set aside. 21. In view of the above, the writ petition is allowed. The impugned order is quashed and set aside. The application for condonation of delay in filing of written statement is allowed. The written statement of the Petitioner shall be taken on record by the Court below. But this shall be subject to the Petitioner depositing an amount of Rs.50,000.00 towards costs in the Court below within four weeks from today, failing which the order passed by this Court would stand recalled. Upon the said amount towards costs being deposited within the stipulated period of time before the Court below, the same shall be disbursed forthwith to the Respondent herein.