JUDGMENT Dharmadhikari B.P., J.
1. By this petition, the petitioner/defendant has challenged the order dated 12.4.2005, passed by the Civil Judge, Senior Division, Chandrapur rejecting his application at Exh.35, seeking permission to file written statement on record by setting aside the order of proceeding further in Regular Civil Suit No. 33/2002 without written statement. I have heard Advocate Joshi, for petitioners and Advocate Potbhare, for respondents.
2. Grievance made by Advocate Joshi, is that the dispute is between son and father and the father/defendant was under the impression that he had already filed written statement on record though what was filed was only a reply opposing the application for grant of temporary injunction. The said temporary injunction was rejected and thereafter, the case was fixed for written statement at that time it became clear that the written statement had not been filed. Because of old age and being illiterate, they could not consult their Advocate and could not give him necessary instructions to file written statement, and hence the same could not be filed earlier on record. It is stated that this was on account of inadvertence on the part of the petitioners. Advocate Joshi, contends that in such circumstances, particularly when written statement was nothing but reiteration of reply to the temporary injunction application, the Court below could not have refused to take written statement on record. In support he places reliance upon the judgment of this Court, reported at 2006(Supp.) Bom.C.R. (O.S.) 484 : 2006(1) Mh.L.J. 745 Hindurao Tukaram Shelke v. Prakash Kallappa Awade 2006(Supp.) Bom.C.R. (N.B.) 431 : 2006(1) Mh.L.J. 128 Nandlal Vitthaldas and Co. v. Agricultural Produce Market Committee Anil Kushabrao Phutane v. Madhukar Kushabrao Phutane and Ors., and the judgment of Hon'ble Apex Court reported at Sheikh Salim Haji v. Kumar and Ors.. He also points out that other judgment of Hon'ble Apex Court reported at Chintaman Kaklij v. Shivaji Bhausaheb Gadhe and Ors..
3. As against this, Advocate Potbhare, states that the suit was already proceeded without written statement and the respondent defendant have already filed their affidavit evidence on record. He further contends that the petitioner did not approach the Court below with clean hands because the story of the defendant about not contacting the Advocate is not correct. He states that the suit was filed on 9-7-2002, and the petitioner filed his reply opposing temporary injunction application on 3-8-2002. He further states that what is sought to be placed on record as written statement is same reply again without any alterations. According to him therefore, there was no need to give any instructions to Advocate and this is not the matter which is either exceptional or extra ordinary so as to enable the petitioner/defendants to file written statement on record. He states that a false reason was placed for consideration before the trial Court, and the trial Court has rightly found that there is no cogent reason to exercise discretion in favour of such defendant. He contends that no case is therefore, made out for interference in writ jurisdiction.
4. Judgment on which the learned Counsel has placed reliance i.e. 2006(1) Mh.L.J. 128 (supra), specifically considers the position in the light of the exceptional or extraordinary circumstances, and perusal of paragraph Nos. 11, 12 and 15 thereof is important. The said paragraphs reads as under.
11. On facts, the petitioners have made out a case, which is exceptional namely the days lost between the date of appearance and failure to file written statement were spent in hearing on Exh. 12. The learned Advocate for petitioners while he submitted Exh. 12 and proceeded for hearing thereof could have very well filed an application for grant of extension to file written statement until decision of Exh. 12. However, no such application was filed apparently on mistaken belief that the objection pertains to the jurisdiction of the Court and filing of written statement may not be necessary until said point is decided.
12. Though the notion, due to which written statement was not filed is not legally correct, however, a litigant always acts under legal advise and cannot be blamed for failing to file written statement when in such peculiar situation, said lapse cannot be described as negligence on the part of party defendants.
15. As narrated hereinabove, it seems that the Written Statement is filed on 1st date soon the application Exh. 12 was rejected. Thus, it cannot be said that the party was indifferent and negligent. It was entitled to raise legal objection as to jurisdiction which it has raised. Lapse in filing documents had occurred due to improper legal advise. Failure to file written statement based on failure to file application for seeking time to file written statement until the decision of application for extension of time is thus, fully attributable to the legal advice and not a lapse attributable to the wish and or negligence of the client.
The Court has found that the application for extension of time pending consideration of application for dismissal of suit was not filed, obviously under mistaken belief that the objection was pertaining to the jurisdiction of the Court and filing of written statement would not be necessary. The Court has also found that the litigant in such circumstances, acts under legal advise and cannot be blamed for not filing written statement. This Court has found that the lapses in filing written statement is not attributable to the wish or negligence of client.
5. Perusal of other judgment reported in the same volume, at page No. 369 reveals that there also the Court expressly found that the written statement along with the application seeking time was filed within time and the Court below did not pass orders upon it till after expiry of 90 days, and hence the petitioner/defendant could not have been blamed for such lapses. The perusal of the paragraph Nos. 18, 19, 22 and 23 in this respect is important. The contents of paragraph No. 23 are reproduced below for leading reference.
23. Reading the text of Order VII, Rule 1 of the Amendment Act of 2002 as it stands now, it is crystal clear that defendant has to file written statement within 30 days, from the date of service of summons. However, the proviso furthere entitles the defendant to file written state- merit if he has failed to file the same within the said period of 30 days and in that case, he shall be allowed to file the same on such other day as may be specified by the Court for the reasons to be recorded in writing, but which shall not be later than 90 days from the date of service of summons. Therefore, when the appellant filed the application on 16-4-2004 seeking permission of the Court to accept the written statement, which he had filed was well within the period of 90 days, it was incumbent on the trial Court to allow the application on that day itself. In this context, it is very pertinent to note that, in that application itself, the applicant has stated that the application was filed on 16-4-2004, though the matter was already kept on 21-6-2 004, as on 21-6-2004 the period of 90 days was to expire. In this context instead of allowing the application, the trial Court adjourned it for the say of other side and then passed order on 20-6-2004 rejecting the application observing that the Court has no power to take the written statement on record after 90 days. It is thus significant to note that, on the day when the Court passed the order i.e. on 20-7-2004, the period of 90 days, expired. But, for that, no fault could be found with the appellant, as the appellant had filed the application on 16-4-2004, which was very much within the period of 90 days. That apart, the provision contained in Order VIII, Rule 1 has been interpreted by the Apex Court and this Court, which gives discretion to the Court to permit a defendant in a suit to file written statement in spite of the time schedule contained in the proviso. Therefore, it is held that the provisions contained in Order VIII, Rule 1 of the Code of Civil Procedure, is a part of procedural law. It is directory; keeping in view the need for expeditious trial of civil cases, which persuaded parliament to enact the provision in its present form, the time schedule contained in the provisions is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant is not be granted just as a matter of routine and merely because it is asked for, more so when the period of 90 days has expired. Extension of time may be allowed by way of exception for the reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be allowed if it is needed to be given in the circumstances, which are exceptional, again by reasons beyond the control of the defendant and if grave injustice would be occasioned if the time is not extended..
6. The Judgment of Hon'ble Apex Court reported at 2006(1) Mh.L.J. 178 (supra), again considers the facts which show that no lapses was there on the part of the defendant. The date given by the trial Court for filing of written statement was 19-2-2004 and it was declared as holiday. The defendant therefore, filed written statement immediately on next date i.e. 20-2-2004 and it was not accepted as it was found to be beyond 90 days. Paragraph Nos. 19 and 20 in this respect are important and they read as under:
19. The matter can be looked at another angle. Undisputedly, the trial Court had granted time upto 19-2-2004 which undisputedly fell beyond the 90 days' period. Since the 19-2-2004 happened to be a holiday, the Written Statement was filed on the next day. Had the written statement been filed on 19-2-2004, obviously the Court could not have refused to accept the written statement as it was within the time granted by it. Merely because of the fortuitous circumstance the written statement came to be filed next day i.e. on account of the date fixed being holiday that cannot make the written statement filed unacceptable.
20. Learned Counsel for the respondent submitted that the Court could not have granted time beyond 90 days. This plea is untenable in view of what has been stated in Kailash v. Nanhku (supra) and Rani Kusum (Smt.) v. Kanchan Devi (Smt.) and Ors. (supra). Additionally a party cannot be made to suffer if the Court has committed mistake if for the sake of argument it is held that the Court had mistakenly granted time.
7. The judgment of Division Bench of this Court on which reliance has been placed i.e. 2004(4) Mh.L.J. 739 (supra), again considers the entire case law on the point and concludes that the written statement can be allowed to be filed by extending time even after 90 days in exceptional and extra-ordinary circumstances. Paragraph No. 33 thereof is important and the said paragraph read as under:
33. In view of the foregoing discussions we hold that Rules 9 and 10 of Order 8 of Civil Procedure Code give discretion to the trial Court to allow the defendant to file written, statement even after expiry of a period of 90 days as contemplated by Order 8, Rule 1. We hasten to add that this does not mean that the order of extending time to file written statement can be granted casually, and unmindful of provisions that extension would not exceed 90 days. The provisions of Order 8, Rule 1 always be kept in mind while passing order extending time for filing written statement to the suit and ordinarily such extension shall not be granted except in exceptional and special circumstances.
8. The learned Counsel for the petitioner invited attention to the ruling of this Court reported at 2006(1) Mh.L.J. 745 (supra), particularly paragraph No. 17 thereof. However, in paragraph No. 17, this Court has permitted written statement to be filed on record, but that seems to be the view taken in the facts and circumstances of that case. Here the Court below has already rejected the written statement and in writ jurisdiction this Court is examining whether the said exercise of jurisdiction is perverse or erroneous.
9. The facts of the present case reveal that the reply on affidavit opposing temporary injunction was filed immediately on 23-7-2002 by the present petitioner. Thereafter, the application at Exh. 5 itself was decided on 22-7-2004. The petitioner/defendants did not took any steps to file written statement on record, and the on 12-1-2005, came up with the application for setting aside the no written statement order and for grant of time to file written statement. The reason mentioned therein is also not correct. Because ultimately what is placed as written statement on record is only a reply filed to temporary injunction application. The petitioner defendant has therefore, failed to make out any exceptional or extra ordinary circumstances in the matter. The various judgments mentioned above, show that though there is no fetter on the powers of the Court as such to permit written statement to be filed even after expiry of 90 days, the said jurisdiction is to be exercised only in extra ordinary or exceptional circumstances or fortuous circumstances. It is apparent that the defendant cannot be privy to such circumstances. Here no such circumstances has been pleaded or pointed out. I therefore, find that no case is made out for interference with the orders passed by the Court below. There is no jurisdictional error of perversity in it. Writ Petition is therefore, found to be without substance. The same is dismissed. No costs.