Viresh D Doshi vs Badal Mirdha

The petitioner, plaintiff in Title Suit No.281 of 2013, is aggrieved of order dated 02.05.2015 by which written statement of defendant nos.1 and 2 has

been accepted by the court.

Contention raised by Sri R.S. Mazumdar, the learned Senior counsel for the petitioner is, whether the trial judge has jurisdiction to permit the

defendant nos.1 and 2 to file written statement after they were debarred from filing written statement and continued to appear in the suit till it was

posted for arguments?

The learned counsel for the respondent nos. 1 and 2, however, has contended that provision under Order VIII Rule 1 CPC is directory and not

mandatory and while so, for the ends of justice the defendant can be permitted to file written statement beyond the period prescribed thereunder. The

learned counsel has relied on a decision in “Kailash Vrs. Nanhku and Others†reported in (2005) 4 SCC 480 and “Banwari Lal Jalan Vrs.

Murari Lal Jalanâ€​ reported in 2011 (3) JLJR 46.

Title Suit No.281 of 2013 was instituted by the petitioner for a decree for declaration of his right, title and interest over the suit properties and for a

declaration that Sale Deeds dated 08.06.2004 and 08.07.2004 are illegal, inoperative, null and void and not binding on him. In the suit defendant nos.1

and 2 appeared on 11.02.2014 and they were granted time for filing written statement. Thereafter the suit was posted on 22.04.2014, 04.06.2014 and

11.07.2014, however, the defendant nos.1 and 2 by that time had not filed their written statement and accordingly, they were debarred from filing

written statement by order dated 11.07.2014. The plaintiff examined his witnesses by 19.02.2015, but before that amendment in the plaint was allowed

vide order dated 25.09.2014. After the plaintiff's argument was closed on 19.03.2015, on the next date of hearing, that is, on 06.04.2015 defendant

nos.1 and 2 filed their written statement. By the impugned order dated 02.05.2015 the trial judge has accepted the written statement of defendant

nos.1 and 2.

Proceeding in Title Suit No.281 of 2013 would disclose that after defendant nos.1 and 2 were debarred from filing written statement, the suit was

posted for hearing on as many as 10 occasions and all through defendant nos.1 and 2 have participated and cross-examined the plaintiff's witnesses.

Order VIII Rule 1 CPC provides that within 30 days of service of summons the defendant shall present his written statement of defence. Under

proviso to Order VIII Rule 1 CPC this period can be extended upto 90 days for the reasons recorded by the trial judge. Only reason recorded in the

impugned order dated 02.05.2015 is that in the interest of justice evidence of both the parties should be recorded(ysfdu okn ds mfpr U;k; fu.kZ;u gsrq

mHk; i{kksa dh mifLFkfr ,oa mHk; i{kksa dk lk{; ysuk vko';d ,oa U;k;ksfpr gS).

No doubt, provision under Order VIII Rule 1 CPC has been held directory but at the same time it has been held that period provided under Order

VIII Rule 1 CPC normally should be adhered to and it can be extended only in exceptional cases. In the reported judgment at paragraph no.44

(Kailash Vrs. Nanhku and Others) the Supreme Court has observed that the extension of time shall be only by way of exception and for reasons to be

recorded in writing. The Supreme Court has further held that in no case the defendant shall be permitted to seek extension of time when the court is

satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel.

Once it is found that the defendant nos.1 and 2 have participated in the trial of the suit and cross-examined the plaintiff's witnesses, still did not file

written statement at the earliest opportunity, only inference that can be gathered from the attending circumstances is that the defendants were

negligent;Â a negligent litigant cannot be permitted to plead that if he is not permitted to file written statement he would suffer irreparable loss and

injury. In a recent judgment in Civil Appeal No(s).4266-4267 of 2018 in “Atcom Technologies Limited Vrs. Y.A. Chunawala and Co. & Ors.†a

similar view has been expressed by the Supreme Court in these words:

 “ No doubt, the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 are procedural in nature and, therefore, hand maid of

justice. However, that would not mean that the defendant has right to take as much time as he wants in filing the written statement, without giving

convincing and cogent reasons for delay and the High Court has to condone it mechanically.â€​

In the aforesaid facts and for the reasons indicated hereinabove, the impugned order dated 02.05.2015 is held unsustainable and accordingly, it is

set-aside. Trial in Title Suit No.281 of 2013 shall continue, from the stage of arguments, however, written statement filed by the defendant nos.1 and 2

shall be excluded from consideration. Needless to indicate that even in absence of written statement the defendant nos.1 and 2 can raise issues which

are permissible in law.

The writ petition stands allowed.