Udaykumar Dayanand Shetty vs Dumubai Jonas Since Dec And Ors
2025 Latest Caselaw 5064 Bom

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and was discharged on 6th February, 2017 and was advised rest

for three months. The subsequent medical papers which

primarily consist of the diagnostic test reports indicate that

defendant No.1 was a case of inactive Colon Cancer for which he

was operated upon in the month January, 2017. There is not a

single certificate of medical practitioner to show that defendant

No.1 continued to suffer from Cancer. In these circumstances,

the learned Civil Judge cannot be said to have committed any

error in rejecting the prayer to condone the huge delay of 2791

days in filing the written statement.

9. To lend support to these submissions, Mr. Shetye placed

reliance on the decisions of the Supreme Court in the cases of

Majji Sannemma vs. Reddy Sridevi and others 2 and Ajit Singh

Thakur Singh and another vs. State of Gujarat3, wherein the

Supreme Court had declined to condone the delay on the

ground that no sufficient cause was made out.

10. I have given careful consideration to the material on record

and the submissions canvassed across the bar. Undoubtedly,

procedure is handmaid of justice. And it ought not be permitted

to score a march over substantive justice. Ordinarily, the Courts

lean in favour of the condonation of delay in complying with the

2 AIR 2022 SC 332.

3 (1981) 1 Supreme Court Cases 295.

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procedural requirements for which a time-frame is provided,

with a view to ensure that a lis is decided on merits rather than

on technicalities. However, in cases where there is an inordinate

delay which runs into years, different considerations come into

play, though it is not the length of the delay but sufficiency or

justifiability of the cause ascribed for the delay which matters.

In cases of inordinate delay heavy onus rests on the claimant to

show the sufficiency of cause.

11. It is also true that the provisions contained in Order VIII

Rule 1 of the Code prescribing the time limit for filing the

written statement have been construed to be directory. In the

case of Rani Kusum (supra), on which reliance was placed by

Mr. Sule, the Supreme Court enunciated the approach to be

adopted by the Courts in the following words:

"10. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.

11. The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer.

12. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of

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vesting a residuary power in judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable. - Justice is the goal of jurisprudence - processual, as much as substantive. (See Sushil Kumar Sen v. State of Bihar (1975 (1) SCC 774).

13. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. (See Blyth v. Blyth (1966 (1) All E.R. 524 (HL). A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. (See Shreenath and Anr. v. Rajesh and Ors. (AIR 1998 SC 1827).

14. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. 15, It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order 8 is circumscribed by the words - "shall not be later than ninety days" but the consequences flowing from non- extension of time are not specifically provided though they may be read by necessary implication. Merely, because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form."

12. At the same time, it is necessary to note that the

provisions contained in Order VIII Rule 1 cannot be so

construed as to frustrate the legislative object behind

prescribing the time limit for filing the written statement. If the

Court finds that the written statement was not filed on account

of deliberate inaction or there is no justifiable reason for not

filing the written statement for an inordinately long period, then

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extension of time to file written statement would run counter to

the legislative object. A profitable reference in this context can

be made to a Three-Judge Bench judgment of the Supreme

Court in the case of R. N. Jadi & Brothers and others vs.

Subhashchandra4, wherein the Supreme Court has cautioned

against extending the time to file the written statement as a

matter of course. The Supreme Court has observed that it is

necessary to emphasise that an extension of time beyond 90

days of the service of summons must be granted only based on

a clear satisfaction of the justification for granting such

extension, the Court being conscious of the fact that even the

power of the Court for extension inhering in Section 148 of the

Code, has also been restricted by the legislature. The

observations in paragraphs 14 and 15 are instructive, which

read as under:

"14. It is true that procedure is the handmaid of justice. The court must always be anxious to do justice and to prevent victories by way of technical knock-outs. But how far that concept can be stretched in the context of the amendments brought to the Code and in the light of the mischief that was sought to be averted is a question that has to be seriously considered. I am conscious that I was a party to the decision in Kailash vs. Nankhu and others (2005 (4) SCC 480) which held that the provision was directory and not mandatory But there could be situations where even a procedural provision could be construed as mandatory, no doubt retaining a power in the court, in an appropriate case, to exercise a jurisdiction to take out the rigor of that provision or to mitigate genuine hardship. It was in that context that in Kailash vs. Nankhu and others (supra) it was

4 (2007) 6 SCC 420.

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stated that the extension of time beyond 90 days was not automatic and that the court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from the time limit fixed by the Code and the power inhering in the court in terms of Section 148 of the Code. Kailash is no authority for receiving written statements, after the expiry of the period permitted by law, in a routine manner.

15. A dispensation that makes Order VIII Rule 1 directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasize that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order VIII Rule 1 must be adhered to and that only in rare and exceptional cases, the breach thereof will be condoned. Such an approach by courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in courts. The lament of Lord Denning in ALLEN vs. SIR ALFRED McALPINE & SONS [(1968) 1 All E.R. 543] that law's delays have been intolerable and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times?

13. In the light of the aforesaid enunciation of law, reverting to

the facts of the case, it becomes evident that the delay in the

instant case is both inordinate and unexplained. The only

explanation for the delay in filing the written statement is to be

found in paragraph 3 of the application. It reads as under:

"3. This defendant states that technically, he should have filed his written statement on or before 05.08.2016. Therefore, technically there is delay of 2791 days in filing the written statement. The defendant No.1 states that because of illness and the pandemic situation, he could not give attention to the pending suit and this Defendant was not in a position to meet his Advocate and give instructions. This Defendant states that

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his failure to attend the Court was not deliberate. This Defendant states that has no intention to not contest the suit. The delay has been caused for just and sufficient reasons as stated above."

14. The explanation is omnibus. At best, two reasons can be

culled out. Firstly, the defendant No.1 was ill. Secondly, on

account of Covid-19 Pandemic the defendant No.1 could not

take steps to file the written statement. The nature of the

illness, defendant No.1 was allegedly suffering from, has not

been spelled out. Nor there is any explanation for the failure to

file the written statement before, and subsequent to, the Covid-

19 Pandemic.

15. As a submission was canvassed before the Court that

defendant No.1 was suffering from Cancer, this Court was

anxious to consider the said ground, and, thus, permitted the

petitioner to place material on record to substantiate his claim.

Though a compilation of 300 pages has been placed on record,

yet, it is necessary to note, it does not advance cause of

defendant No.1. All 300 odd pages consist of the reports of

diagnostic tests, primarily blood tests, of defendant No.1, over

the years. Indeed, in the reports, there is a reference to Colon

Cancer as an inactive problem and for which the defendant No.1

was operated upon in the year 2017.

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16. Conversely, the respondents have placed on record

material to indicate that in the intervening period, defendant

No.1 entered into transactions pertaining to immovable

properties and registered instruments have been executed by

defendant No.1.

17. In these circumstances, in my considered view, the

learned Civil Judge was justified in declining to condone the

delay of over seven years in filing the written statement. The

defendant No.1 could not satisfactorily account for the delay nor

could furnish a justifiable cause to permit him to file the written

statement. Even if the Courts were to brush aside the fact that

defendant No.1 appeared before the Court when the matter was

posted for pronouncement of judgment, as a matter of sheer

coincidence, yet, in the totality of the circumstances, the delay

in filing the written statement appears to be on account of

deliberate inaction, negligence, or for that matter, defiant

indifference on the part of defendant No.1 to the proceedings

before the trial court especially when the roznama indicates

that, at times, the Advocate for defendant No.1 appeared

intermittently before the Court.

18. For parity of reasons, no fault can be found with the order

refusing to set aside order to proceed ex-parte.

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19. Thus, this Court does not find any justifiable reason to

interfere with the impugned order in exercise of supervisory

jurisdiction. The petition thus deserves to be dismissed.

20. Hence, the following order:

:ORDER:

(i) The petition stands dismissed with costs.

(ii)    Rule discharged.

                                           [N. J. JAMADAR, J.]

At this stage, the learned Counsel for the petitioner seeks

continuation of ad-interim order.

Ad-interim order shall continue to operate for the period of

six weeks.

[N. J. JAMADAR, J.]