Full Judgment Text
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CASE NO.:
Appeal (civil) 1572 of 2007
PETITIONER:
M/s Aditya Hotels (P) Ltd
RESPONDENT:
Bombay Swadeshi Stores Ltd. and Ors
DATE OF JUDGMENT: 26/03/2007
BENCH:
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No.7644 of 2006)
Dr. ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is to the order passed by a
learned Single Judge of the Bombay High Court
dismissing the Writ Petition filed by the appellant holding
that the order passed by the trial Court was a
discretionary one. The trial Court by its order dated
9.9.2005 granted permission to the respondents to file
written statement subject to payment of costs of
Rs.2000/-. The said order was passed in Civil Suit
No.59/2005 by the Small Cause Judge, Pune.
Background facts in a nutshell are as follows:
Appellant filed Civil Suit No.59 of 2005 in the Court
of Small Cause Judge, Pune, inter-alia seeking vacant and
peaceful possession of the suit premises. The suit was
filed on 24.12.2004. The Small Cause Judge, Pune, issued
summons to the respondents in the suit which were
served on 22.3.2005. On 25.4.2005 counsel for the
respondents filed vakalatnama and prayed for time to get
information from his client and to file written statement, if
any. On 20.6.2005 the matter was fixed for filing of the
written statement. However, no written statement was
filed. The Advocate requested for further time. The trial
Court granted time to the respondents to file written
statement at their own risk. Again, the matter was fixed
for 14.7.2005. On that date also written statement was
not filed. Again time was granted at the risk of the
respondents. The written statement in fact was filed on
12.8.2005. Appellant sought for time to file the objections
regarding the acceptability of the written statement which
was filed after 142 days. By a cryptic order dated 9.9.2005
as noted above written statements were permitted to be
filed and taken on record subject to payment of costs of
Rs.2,000/-. The order of the trial Court was challenged
before the High Court in a writ petition filed under Article
227 of the Constitution of India, 1950 (in short the
’Constitution’). The High Court summarily dismissed the
writ petition on the ground that discretionary power has
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been exercised.
In support of the appeal, learned counsel for the
appellant submitted that after amendment to Order VIII of
the Code of Civil Procedure, 1908 (in short the ’Code’)
w.e.f. 1.7.2002, the defendant is granted 30 days time to
present the written statement. The period is to be
reckoned from the date of service of summons. However,
the proviso to the said provision permits extension of time
when the Court is satisfied about the existence of reasons
to be recorded in writing. It is submitted that neither the
trial Court nor the High Court indicated any reason
justifying the extension of time.
Learned counsel for the respondents on the other
hand submitted that the reason for excuse was shown for
filing of the written statement. Though elaborate
reasonings have not been indicated, the order being a
discretionary one, no interference is called for.
The parameters for extending the time granted by
Order VIII Rule 1 of the Code have been delineated by this
Court in several cases. In Kailash v. Nanhku and Ors.
(2005 (4) SCC 480) it was noted as follows:
"42. Ordinarily, the time schedule
prescribed by Order 8 Rule 1 has to be
honoured. The defendant should be
vigilant. No sooner the writ of summons is
served on him he should take steps for
drafting his defence and filing the written
statement on the appointed date of
hearing without waiting for the arrival of
the date appointed in the summons for his
appearance in the Court. The extension of
time sought for by the defendant from the
Court whether within 30 days or 90 days,
as the case may be, should not be granted
just as a matter of routine and merely for
the asking, more so, when the period of 90
days has expired. The extension can be
only by way of an exception and for
reasons assigned by the defendant and
also recorded in writing by the court to its
satisfaction. It must be spelled out that a
departure from the time schedule
prescribed by Order 8 Rule 1 of the Code
was being allowed to be made because the
circumstances were exceptional,
occasioned by reasons beyond the control
of the defendant and such extension was
required in the interest of justice, and
grave injustice would be occasioned if the
time was not extended.
44. The extension of time shall be only by
way of exception and for reasons to be
recorded in writing, howsoever brief they
may be, by the court. In no case, shall the
defendant 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. The
court may impose costs for dual purpose:
(i) to deter the defendant from seeking any
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extension of time just for the asking, and
(ii) to compensate the plaintiff for the delay
and inconvenience caused to him."
Since neither the trial Court nor the High Court have
indicated any reason to justify the acceptance of the
written statement after the expiry of the time fixed, we set
aside the orders of the trial Court and that of the High
Court. The matter is remitted to the trial Court to consider
the matter afresh in the light of what has been stated in
Kailash’s case (supra). The appeal is allowed to the
aforesaid extent with no order as to costs.