Maharashtra State Electricity ... vs Rajesh Pralhad Khobragade
2006 Latest Caselaw 905 Bom

JUDGMENT

Gavai B.R., J.

1. Rule. Rule is made returnable forthwith. Heard finally by consent of the parties. Ms. Ujwala Nandeshwar, learned Counsel waives notice on behalf of the respondent.

2. By way of present petition, the petitioners challenge the order dated 25th August, 2004 in Regular Civil Suit No. 42 of 2003 thereby rejecting the application of the present petitioners for permission to file Written Statement.

3. The respondent-plaintiff has filed a suit for declaration and injunction challenging the bill issued by the defendants in the said suit. The petitioners-defendants were under an impression that the written statement was already filed on 29th April, 2003 when the matter was kept for filing of Written Statement. It is further submitted that subsequently though the written statement was ready, it was not filed and, therefore, the application for permission to file written statement came to be filed by the petitioners-defendants. The said application came to be rejected vide order dated 25th August, 2004. Being aggrieved thereby, the petitioners have approached before this Court by way of present petition.

4. Heard Shri R.K. Deshpande, the learned Counsel appearing on behalf of the petitioners and Ms. Ujwala Nandeshwar, the learned Counsel appearing on behalf of the respondent.

5. Shri R.K. Deshpande, the learned Counsel for the petitioners submits that the delay in filing written statement was not deliberate but was due to mistake on the part of the Counsel. He submits that the case is made out for permission to file written statement.

6. As against this, Ms. Ujwala Nandeshwar, the learned Counsel for the respondent vehemently opposes the present petition. She submits that though the petitioners had an ample opportunity to file written statement within stipulated time, the petitioners had failed to avail of the same and as such the petition deserves to be dismissed.

7. No doubt that under Order VIII, Rule 1, the respondent is expected to file written statement initially within thirty days and for some valid reason within 90 days. However, the said provision was held to be directory in nature. If the party makes out a genuine case then the party can be directed to file written statement even beyond the period of 90 days. The interest of the respondent-plaintiff can be safeguarded by imposing the costs on the petitioners.

8. In that view of the matter, the impugned order dated 25th August, 2004 is quashed and set aside. The application for permission filed by the petitioners to file written statement is allowed subject to payment of costs of Rs. 1,500/-. The payment of costs of Rs. 1,500/- in the trial Court shall be condition precedent for allowing the application. On deposit of said costs in the trial Court, the respondent-plaintiff shall be at liberty to withdraw the same. Rule is accordingly made absolute in the aforesaid terms.