Bhanusing Vishnu Patil, Bebibai ... vs Shri Vishwas Arjun Patil
2008 Latest Caselaw 116 Bom

JUDGMENT

A.H. Joshi, J.

1. Rule. Rule is made returnable forth with and heard by consent.

2. In the present case, the defendant has assigned two reasons for the failure to file written statement in time permitted by law.

3. The first reason is that the petitioners had gone to Surat for earning their livelihood. There were un-precedental and heavy rains at Surat and that due to said reasons petitioners were held-up at Surat.

4. Second reason is assigned about petitioner No. 1 & 2's sickness & being bed ridden, and also due to their old age. It is further urged that the petitioner No. 3 was involved in attending other two sick and infirm petitioners.

5. Both these grounds of facts are supported by the affidavit of Bhanusing.

6. The learned trial Judge did not deal in impugned Judgment with the aspect of the obstruction due to rain, may be because said ground went un-opposed. Yet learned trial court did not either accept or reject this ground.

7. The learned Judge has however dealt with the aspect of the sickness and found that this fact was not supported by medical evidence of attending Doctors. The learned Judge, then observed that ordinarily the allegations of sickness would not be believed in absence of medical evidence, and hence found that exceptional and extraordinary circumstances have not been demonstrated.

8. The respondents are not able to show from the impugned order that the fact of sickness was disputed by any method, such as: (i) calling the affiant or any party in the witness box for examination/cross-examination; (ii) filing an affidavit of any person who had personal knowledge that the defendants were not sick, including the affidavit of the respondents and by contradicting petitioners version.

9. In this background, it is the case, where the plea raised by the defendants, attempting to bring on record the circumstances, which had led to failure to file the written statement in time, have gone unchallenged.

10. In this back ground present petition is opposed urging that petitioners had failed to make out a case of their being unable to file written statement within span of 90 days allowed by law. It is urged that no exceptional circumstances were pleaded and proved.

11. Now, therefore, the question left to the Court is to decide as to whether facts on record do constitute and do satisfy the test of exceptional circumstance.

12. As averred by the applicant:

(a) they had gone to Surat for earning wage;

(b) due to heavy rains they were stick-up there;

(c) petitioner Nos.1 and 2 became sick and petitioner No. 3 was engrossed in attending them.

13. Considering the reasons assigned and weighing & assigning those, this Court would adopt the test of seeing whether they were negligent to the proceedings, or could they have like any other man of ordinary prudence come out of the difficulty and could have arranged to contact the Advocate and to file the written statement in time allowed by law and by the court. Travelling hundreds of miles away for meeting minimum needs of life is a common phenomenon. So is the case of sickness.

14. Moreover, the fact that due to pressure of pendency and excessive work on hand, mostly, the trial court did not & could not at once or later decide the suit even under Order 8 Rule 10 of C.P.C. is a matter which can not be ignored or connived at.

15. Therefore, by acceptance of probability of facts which are exceptional to routine smooth life, it was liable to be held that petitioners had made out a case of exceptional circumstance as to why were they precluded from filing the written statement and for those reasons they ought be allowed to do so.

16. Whether given circumstances are exceptional, are always the matter of fact peculiar to the petitioner concerned. There can not be and ought not be a rigid measuring equipment of the factual matrix. The party or court does not sit with any micro meter or a scientific & mechanical gauging device. Facts are product of situation and human aspect thereof needs to be dealt with human approach.

17. Whether a party has made out exceptional and extraordinary circumstances warranting grant of permission to file the written statement after expiry of 90 days from the date of appearance, is a matter, fact, which has to depend on variety as may exist in each case.

18. Exceptional ness of circumstance is a question of fact. In present case the facts as brought on record have gone un-challenged.

19. Reasons assigned in present case by petitioners do satisfy the test of exception. The impugned order, therefore, is not based on sound reasons.

20. In this background, the application for taking the written statement on record, was liable to be allowed as the petitioners had brought on record circumstances which were beyond control and are exceptional.

21. Writ petition deserves to be allowed and is allowed as follows:

(A) Rule is made absolute in terms of prayer Clause (B).

(B) The in-convenience and delay which may result in adjudication of the plaintiffs suit, can be mitigated by payment of costs. Petitioners shall pay to the respondent by depositing in trial court costs in sum of Rs. 2,000/-(Rs. Two Thousand only), within six weeks, from today. Respondent/plaintiff is free to withdraw the said amount after it is deposited by the petitioners.

(C) If the costs is not deposited in time granted, the order passed below Exh.5 shall automatically revives.