JUDGMENT R.C. Chavan, J.
1. Rule. Returnable forthwith. Heard by consent of the parties.
2. By this petition the petitioner-defendant in Regular Civil Suit No.17/2004 takes exception to rejection of his application for permission to file reply and written statement on record.
3. The petitioner/defendant had appeared in the said proceedings before Civil Judge Jr.Dn., Patur on 16.07.2004. Instead of filing written statement on the same day he filed an application Exh. 11 under Section 9-A of the Code of Civil Procedure taking exception to jurisdiction of the Civil Court. This application was decided by the learned Judge on 28.01.2005. On 03.02.2005 i.e. five days after rejection of his application under Section 9-A of the C.P.C., the defendant filed application for permission to file reply and written statement on record. With this application he annexed reply to application under Order 39 Rules 1 and 2, but did not annex any written statement.
4. The learned Judge considered plaintiff's objection to the leave sought by the defendant to file reply and written statement and rejected the application in toto, relying on judgment of this Court in Chintaman Sukhdeo v. Shivaji Bhausaheb reported at . Among other things, the learned Judge observed that the written statement was not submitted along with the application.
5. I have heard Adv. Joshi, learned Counsel for the petitioner and Adv. Shaikh Majeed, learned Counsel for the respondent.
6. Adv. Joshi, learned Counsel for the petitioner, states that his client did not and even now, does not, intend to file any different written statement and reply to application under Order 39 Rules 1 and 2 of the Code was itself to be the written statement to the plaint. He stated that his client would not seek amendment to the written statement unless there are any subsequent developments, warranting amendment. As of now, his client would go to trial on the basis of this reply. Had this position been made clear before the learned trial Judge, may be the learned trial Judge would have taken a different view.
7. Advocate Shaikh Majeed, learned Counsel for the respondent, submitted that in view of the observations of this Court in Chintaman Sukhdeo v. Shivaji Bhausaheb, unless the petitioner made out an exceptional or extraordinary case the discretion to permit the petitioner to file written statement beyond the period of 90 days could not have been exercised and therefore, the learned trial Judge has rightly rejected petitioners application.
8. Observations in paragraph 29 of the judgment in Chintaman v. Shivaji have to be read along with the context which is provided by paragraph 22 of the judgment, where the Division Bench of this Court observed that the intention was not to penalise the defendant who does not submit defence in the prescribed period. The changes in the Civil Procedure Code were aimed at curtailing delays and not defences. The learned trial Judge should have seen that after his rejection of the petitioner's application taking objection to the jurisdiction of the Court the petitioner had come up with the written statement within five days. Therefore, exceptional or extraordinary case did exist for the learned Judge to have exercised his discretion. It seems that the learned Judge felt that application at Exh. 16 whereby the petitioner sought to file reply and written statement on record was just another device for prolonging the proceedings, since the petitioner had not filed written statement along with application. Clarification by the learned Counsel for the petitioner would take care of this aspect.
9. The objection of Adv. Shaikh Majeed for the respondent that unless enlargement of time for filing written statement is sought there would be no occasion for granting permission to take written statement on record is technically correct but then if the Court were to grant permission to take written statement on record it would imply enlargement of time to file written statement as well. The learned Counsel was apprehensive that should the petitioner's lapse in not filing written statement within prescribed time and not even seeking enlargement of time is condoned by allowing the petition and directing that the reply be treated as written statement, this may set bad precedence and render the amended provisions of Order VIII nugatory. This apprehension can be taken care of by pointing out that each case has to be dealt with on its own peculiar facts and the permission now sought by the petitioner is being held as justified only because the petitioner's application, challenging jurisdiction of the Civil Court, Patur, was rejected, just five days before the petitioner sought to file written statement. In view of this, the order passed by the learned trial Judge, which instead of comprehending the spirit of amendment to the Code of Civil Procedure, takes technical view and curtails defences, calls for a correction by this Court. It is always desirable that the parties are given an opportunity of raising appropriate pleas and deciding the matter on merits rather than gagging of one contesting parties.
10. In view of this, the petition is allowed. Impugned order is set aside. Reply to application under Order 39 Rules 1 and 2 of C.P.C. filed by the petitioner is directed to be taken on record as reply to application as well as written statement in the suit. Rule made absolute in the above terms. No order as to costs.