Kaluba Upase vs Rangubai Atole and others

R.M. Savant, J.—Rule. Rule, with consent of the parties, made returnable forthwith.

By this petition, filed under Article 227 of the Constitution of India, the petitioner, who is original defendant No. 4 in Regular Civil Suit No. 316/2002, has challenged the order dated 7-7-2004, by which order, application, Exh. 44, filed by the petitioner for taking his Written Statement on record, has been rejected.

Few facts, which are necessary for decision in the matter, are stated thus : Present respondent Nos. 1 to 3 to the petition have filed Regular Civil Suit No. 316/2002 against the petitioner herein, who is defendant No. 4 in the suit, and respondent Nos. 4 to 6 herein, who are also the defendants in the said suit. The said suit has been filed before learned Civil Judge, Senior Division, Jalna for partition and separate possession as well as for perpetual injunction in respect of an agricultural land being Gut No. 418 situated in village Bhatepuri, Tq. and District Jalna.

It is the case of the plaintiffs, i.e. respondent Nos. 1 to 3 herein that the defendant No. 1 to the said suit, without any legal necessity and without consent of the plaintiffs, had alienated the land admeasuring 6 Ares, which is their ancestral land of defendant Nos. 3 and 4 and consequently, the said suit came to be filed by them. As stated earlier, defendant No. 4 to the said suit is the present petitioner.

The summons of the said suit came to be served upon the petitioner, who appeared and vide an application, Exhibit-16 made to the trial Court, prayed for better particulars to be given by the plaintiffs. The said application of the petitioner was allowed by the trial Court, vide its order dated 22-11-2002. In spite of the said order dated 22-11-2002, the better particulars were not furnished by the plaintiffs till 22-7-2003. In view thereof, it is the case of the petitioner that he could not file his Written Statement. The trial Court, therefore, vide its order dated 17-2-2004 observed that the defendant No. 4 has failed to file his Written Statement, hence, suit to proceed without Written Statement as against the defendant Nos. 2 to 4. Aggrieved by the said order of the trial Court, the petitioner filed an application, Exhibit-44, praying that the Written Statement, which was annexed to the said application, be taken on record. In the said application, the petitioner has averred that the plaintiffs submitted the better particulars only on 22-7-2003 and since the petitioner, who is driver by profession, and who, on account of reason of exigency of service in Mumbai, and also in view of the fact that he had contracted jaundice, could not file the written statement within time stipulated by Order VIII, Rule 1 of the Code of Civil Procedure. To the said application of the petitioner, i.e. defendant No. 4 to the said suit, the respondents 1 to 3 herein have filed their reply, contending that the written statement was not filed by the petitioner within the stipulated time of ninety days, as contemplated under the Code of Civil Procedure.

The trial Court, thereafter rejected the said application, Exhibit-44, vide its order dated 7-7-2004, which is impugned in the present petition. The trial Court in rejecting the said application, Exh. 44, relied upon the judgment of this Court, reported in Iridium India Telecom Ltd. Vs. Motorola Inc. and Another, , the ratio of which judgment was that the general power u/s 148 of the Civil Procedure Code, could not be relied upon for extending the time granted by Order VIII, Rule 1 of the Civil Procedure Code. The learned trial Court, therefore, in the said circumstances, did not consider the justification given by the petitioner for non-filing of the Written Statement in time.

I have heard learned Counsel for the petitioners and learned Counsel for the respondent Nos. 1 to 3. Learned Counsel for the petitioner drew my attention to the Judgment of Division Bench of this Court, reported in Chintaman Sukhdeo Kaklij and Others Vs. Shivaji Bhausaheb Gadhe and Others, . The issue regarding as to whether the time for filing of Written Statement could be extended beyond the period of ninety days stipulated under Order VIII, Rule 1, was referred to the Division Bench in view of the Divergence of views between two learned Single Judges of this Court, namely Vagyani, J. in the judgment reported in Prabhakar Madhavrao Mule Vs. Bhagwan Mitharam Choudhari, and D. B. Bhosale, J. in the judgment reported in Shailaja A. Sawant (DR.) Vs. Sayajirao Ganpatrao Patil, . On the reference made to the Division Bench, the Division Bench (Coram : A. P. Shah and S. U. Kamdar, JJ.) have gone through the entire scheme of Order VIII and Order V of CPC and have come to the conclusion that the time limit, prescribed in Order VIII, Rule 1 of Civil Procedure Code, as regards filing of Written Statement, cannot be construed as mandatory. In exceptional and extraordinary circumstances, the Court has discretion to permit the defendant to file Written Statement beyond the period of 90 days. Relevant observations of the said Judgment of the Division Bench, are reproduced hereunder :

"29. In our opinion, harmonious reading of Rules 1, 5, 9 and 10 of Order 8 of CPC would indicate that in exceptional and extraordinary cases the Court has discretion to permit the defendant to file the Written Statement beyond the period of 90 days stipulated under Rule 1, Order 8 of the Civil Procedure Code."

In the light of the said judgment of the Division Bench, which specifically dealt with the issue of extension of time for filing of Written Statement, the facts of the instant case would have to be considered.

Indubitably, the better particulars were furnished by the original plaintiffs to the petitioner only on 22-7-2003. Therefore, in one way the original plaintiffs have also contributed to the delay in the petitioner not filing the Written Statement in time. The petitioner, who is driver by profession, on account of exigency of his work, could not contact his advocate in time and also he had fallen sick due to jaundice. The status of the petitioner in the instant matter is significant as a driver by profession he is not expected to be as diligent as an educated person. Therefore, some indulgence would have to be shown to the petitioner on the said count. In the said circumstances, I am of the view that the justification assigned by the petitioner would come within the exceptions mentioned in the abovereferred Judgment of the Division Bench of this Court. A party cannot be non-suited on technicalities, but should be given an opportunity to defend its case, as held by the Apex Court in an adversarial system no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Therefore, in my view, it is a fit case, where, the petitioner herein, who is original defendant No. 4, should be allowed to file his Written Statement. Resultantly, the order passed by learned II Jt. Civil Judge, (J.D.), Jalna dated 7-7-2004 below Exh. 44 in Regular Civil Suit No,. 316/2002 is set aside. The trial Court is directed to take the Written Statement tendered by the petitioner with Exhibit-44 on record and thereafter to proceed with trial of the suit. The petitioner would have to pay costs of Rs. 2,000/- to the original plaintiffs.

Rule is accordingly made absolute to the aforesaid extent with no order as to costs.