Bombay High Court
Unknown vs Anita Ramchandra Raskar And Ors on 10 October, 2012
Bench: R. M. Savant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4902 OF 2009
Dhiraj Vijaykant Kudale ..Petitioner
Vs.
Anita Ramchandra Raskar and Ors ..Respondents
Mr. Shailendra S. Kanetkar,for the Petitioner.
Mr. Balasaheb Deshmukh,for the Respondents.
CORAM :- R. M. SAVANT, J.
DATE :- OCTOBER 10, 2012.
ORAL ORDER:
1 Rule, with the consent of the parties made returnable forthwith
and heard.
2 The Writ jurisdiction of this Court under Article 227 of the
Constitution of India is invoked against the order dated 23.08.2007
passed below Exhibit-34, order dated 04.03.2008 passed below Exhibit-
46 and another order of the same date i.e. 04.03.2008 passed below
Exhibit-47. By the said orders, the applications for setting aside the 'no
Written Statement' order, as also the application for being permitted to
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file the Written Statement on behalf of the Respondent No.8 came to be
rejected. The issue in the Petition is, therefore, as to whether, the
Respondent No.8 should be allowed to file his Written Statement. The
facts germane to the said issue can in brief be stated thus:-
The Suit in question has been filed by the Respondent No.1 herein
for declaration and injunction. The declaration sought is in respect of
the decrees passed in Special Civil Suit No. 544 of 2004 and Special Civil
Suit No.547 of 2004. The declaration sought is to the effect that the said
decrees are null and void and not binding on the Plaintiff. The
injunction sought is to the effect that the Defendants be restrained
permanently from creating third party interest, alienating, transferring
or withdrawing the money from the Banks and various securities of the
deceased Chandrakant Shankarrao Kudale as mentioned in the
compromise decree passed in Special Civil Suit No. 544 of 2004 dated
16.02.2005. The dispute, therefore, is as regards the assets of the said
Chandrakant Kudale.
3 The suit summons came to be served on the Defendant No.8 on
13th May, 2007. The Defendant appeared in the said suit on 15.06.2007
through the Advocate and filed an application Exhibit-27 that though the
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summons have been received by the said Defendant, the Plaintiff had not
supplied the copy of the Plaint and the documents at Exhibit-3. The
relief sought by the application Exhibit-27 was therefore a direction to
the Plaintiff to furnish a copy of the Plaint and the documents Exhibit-3.
On the said application, an order came to be passed by the learned
Judge to the effect that the same is "Allowed". In spite of the said order,
it was the case of the Defendant No.8 that the copies of the Plaint and
the documents covered by Exhibit-3 were not furnished to him. Hence,
on the summons being served on the Defendant Nos. 6 & 7 sometime
prior to 15.02.2008, the Defendant No.8 appeared in the said Suit along
with the said Defendant Nos.6 and 7 and filed an application Exhibit-34.
In the said application Exhibit-34, in paragraph no.6, the Defendant
No.8 has averred that the said Defendant has still not received the copy
of the Plaint and the documents in spite of the Court having passed an
order to the said effect. It was therefore prayed that the Suit be
dismissed for non compliance of the order dated 15.06.2007 passed on
Exhibit-27. The said application Exhibit-34 filed by the Defendant No.8
came to be rejected by the Trial Court interalia on the ground that the
order passed on 15.06.2007 was passed in a "casual" manner by the
Court and that on perusal of the suit summons and notice of the
temporary injunction application Exhibit-21, it is revealed that the
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Defendant No.8 has received the notice and the suit summons along
with the documents and the copy of the Plaint. It was further observed
that the Defendant No.8 cannot take advantage of an order which has
been passed " in a casual manner". Thereafter, an application Exhibit-44
came to be filed by the Defendant Nos.6,7 and 8 for being permitted to
file the Say/Written Statement. The reasons which were mentioned in
the application Exhibit-34 were reiterated in paragraph no.2 of the said
application Exhibit-44. The said application Exhibit-44 was partly
allowed to the extent of the Defendant Nos.6 and 7 who were granted
time to file their Written Statement and was rejected insofar as
Defendant No.8 is concerned on the ground that as per the order passed
below Exhibit- 34, last chance was granted to the Defendant No.8 to file
his Written Statement by July 2007. The Defendant No.8 thereafter
moved the application Exhibit-46 for setting aside the said "no Written
Statement" order. In the said application, the grounds which were set
out earlier namely that the copies of the Plaint and the documents
Exhibits- 1 & 3 were not furnished and since the Defendant Nos. 6 and 7
have been permitted to file a Written Statement a joint Written
Statement of all the Defendants i.e. Defendant Nos.6, 7 and 8 is being
filed. It was prayed in the said application that the "no Written
Statement" order passed against the Defendant No.8 dated 15.02.2008
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be set aside and the Written Statement of the Defendant No.8 be taken
on record. The said application Exhibit-46 came to be rejected by the
Trial Court by observing that the Defendant No.8 has not filed his
Written Statement within the statutory period and that no exceptional
circumstances have been mentioned in the application which prevented
the Defendant No.8 from filing the Written Statement, by another order
passed on the said day, on Exhibit-47. The Trial Court directed that the
Written Statement filed jointly by the Defendant to be read and recorded
only in respect of the Defendant Nos.6 and 7.
4 As mentioned herein above the order dated 23.08.2007 passed on
Exhibit-34 and the two orders dated 04.03.2008 passed on Exhibit
Nos.46 and 47 are the subject matter of the above Petition.
5 Heard the learned counsel appearing for the parties. The learned
counsel for the Petitioner Shri. Kanetkar would reiterate the case of the
Defendant No.8 which was advanced in the Trial Court namely that the
Defendant No.8 could not file the Written Statement in view of the fact
that the order dated 15.06.2007 passed by the Trial Court directing the
Plaintiffs to furnish a copy of the Plaint and the documents Exhibit-3 was
not complied with. The learned counsel would contend that since the
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said circumstance goes to the root of the matter, the Defendant No.8 can
be said to have satisfied the condition namely that on account of the
fact that the papers were not furnished to him that the Defendant No.8
could not file the Written Statement, the learned counsel would contend
that since by order dated 04.03.2008 the Defendant Nos.6 and 7 have
been permitted to file the Written Statement, which was a joint Written
Statement on behalf of the Defendants i.e. Defendant Nos.6,7 and 8.
The Trial Court on a hyper technical ground could not have rejected the
said application.
6 Per contra, it is submitted by Shri Deshmukh, the learned counsel
appearing for the Respondents that the Petition has been filed taking
exception to two orders is not maintainable as the Petitioner would have
to file two separate Petitions. The learned counsel would contend that
no case for condonation of delay in filing the Written Statement has
been made out. The learned counsel by relying upon the judgment of the
Apex Court reported in (2009) 3 Supreme Court Cases Page 513 in
the matter of Mohammed Yusuf v/s Faij Mohammad and Others,
would submit that the Defendant No.8 has not made out any ground for
extension of time as contemplated under Order VIII Rule 1 of the Code
of Civil Procedure, 1908.
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7 Having heard the learned counsel for the parties, I have restored
my anxious consideration to the rival contentions.
8 It is well settled by the Catena of judgments of this Court as well
as the Apex Court that the provisions under Order VIII Rule 1 of the C. P.
C., are directory and not mandatory and that for good and sufficient
reasons, the statutory period as mentioned in Order VIII Rule 1 can be
extended.
9 The issue is as to whether in the facts of the present case where
indulgence can be shown to the Defendant No.8 by extending the time.
10 It is an undisputed position that by order dated 15.06.2007, the
application Exhibit-27 filed by the Defendant No.8 was allowed by the
Trial Court thereby directing the Plaintiff to supply a copy of the Plaint
as well as the documents comprised in Exhibit-3. In spite of the said
order, the said documents were not complied with. The Trial Court,
thereafter, by order dated 23.08.2007 rejected the application Exhibit-34
filed by the Defendant No.8 by observing that the order passed on
Exhibit-27 was passed "in a casual manner". As in fact the Plaint and the
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other documents were already served on the Defendant No.8. For the
said purpose, the reliance is placed on the Bailiff's Report. A copy of the
Bailiff's Report has been annexed to the Affidavit-in-Reply filed on behalf
of the Respondents. The said Bailiff's Report states that the summons as
well as the copies of the documents have been served on the Defendant
No.8. The said Bailiff's Report, therefore, cannot in any manner further
the case of the Plaintiff that the copies of the Plaint and the documents
comprised in Exhibit-3 were in fact served upon the Defendant No.8.
Therefore, the Defendant No.8, can be said to have a genuine and
bonafide reason for not filing the Written Statement since the Plaint
itself can be said to be not available with Defendant No.8. It is only on
15.02.2008, by which time, the summons was served on Defendant
Nos.6 and 7 that the Plaint becomes available to the Defendant No.8 as a
consequence of which the Defendant No.8 had filed the application
Exhibit-44 along with the Defendant Nos.6 and 7 which application has
been rejected by the order dated 15.02.2008. The Trial Court has
proceeded on the basis that the Plaint and the documents in question
have been served on the Defendant No.8 and has brushed aside as it
were, the order dated 15.06.2007 by observing that the said order is
passed " in a casual manner". In my view, it was not proper on the part
of the Trial Court to dub a judicial order which is passed in a proceeding
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as having been passed in a casual manner. The said order had the effect
of creating an obligation on the Plaintiff to serve a copy of the Plaint
and the documents in question on the Defendant No.8. The Trial Court,
has brushed aside the said order and by merely observing that the Plaint
and the documents have been served upon the Defendant No.8 has
passed the orders on Exhibit-44 and thereafter has refused to set aside
the "no Written Statement" order passed on 15.02.2008, by the
impugned order passed on Exhibit Nos.46 and 47. The Trial Court,
ought not to have rejected the said application on a hyper technical
ground that the statutory period for the same was already over in view
of the non compliance of the order dated 15.06.2007 passed on Exhibit-
27. It is trite that procedure is always the handmaid of justice and has
to be used to further the cause of substantial justice and not to oppress
it. The Trial Court having deemed it appropriate to allow the Defendant
Nos.6 and 7 to file their Written Statement in the facts and
circumstances of the case, ought not to have restricted the said Written
statement to the said Defendants when it was a joint Written Statement
on behalf of all the Defendants. At the highest, the Trial Court could
have imposed costs on the Defendant No.8 for any inconvenience or
prejudice that was caused to the Plaintiff, but ought not to have left the
Defendant No.8 defenceless. Insofar as the judgment cited on behalf of
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the Respondent is concerned, that is the judgment in the matter of
Mohamad Yusuf(supra), the proposition of the law which is well settled
by the Apex Court has been reiterated by the Apex Court in the said
judgment. The said judgment reiterates the position that the Written
statement can be permitted to be filed after expiry of period of 90 days
only in an exceptional situation. In the facts of the present case wherein
there is no conclusive material on record to indicate that till 15.02.2008,
the Plaint and the other documents were served upon the Plaintiff, the
Trial Court has erred in rejecting the said applications Exhibit-34, 46 and
47. In that view of the matter, the impugned order dated 23.08.2007
and the two orders dated 04.03.2008 passed on Exhibits 46 and 47 are
required to be quashed and set aside and are accordingly quashed and
set aside and resultantly the following directions are issued:
I) The Defendant No.8 would be entitled to file his Written
Statement.
II) The last order dated 04.03.2008 passed below Exhibit-47 is
modified to the extent that the said Written Statement be read as the
Written Statement of the Defendant Nos.6 to 8.
III) Rule is accordingly made absolute in the aforesaid terms.
IV) In the facts and circumstances of the case, the Defendant No.8 to
pay costs of Rs.3000/- to the Respondent No.1 herein within a period of
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four weeks from date.
V) In the facts and circumstances of the case, the hearing of the Suit
is expedited.
( R. M. SAVANT, J.)
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