Kerala High Court

Asokan vs Satheesan on 4 March, 2025

Author: K.Babu

Bench: K. Babu

                                                          2025:KER:18978
O.P (C) No.1135 of 2021
                                          1



                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

                          THE HONOURABLE MR.JUSTICE K. BABU

   TUESDAY, THE 4TH DAY OF MARCH 2025 / 13TH PHALGUNA, 1946

                               OP(C) NO. 1135 OF 2021

 AGAINST THE ORDER DATED 01.03.2021 IN I.A NO.1/2020 IN OS

           NO.1366 OF 2017 OF II ADDITIONAL MUNSIFF COURT,

                                 THIRUVANANTHAPURAM

PETITIONERS:

       1          ASOKAN,
                  AGED 68 YEARS,
                  SON OF KRISHNAN KUTTY, ATTUKADAVU VEEDU,
                  PULUNTHURUTHY, CHIRAYINKEEZHU,
                  THIRUVANANTHAPURAM, NOW RESIDING AT 9,
                  BRIDGEWAY, LEKENHAM, MIDDLESEX, LONDON UBI8QR,
                  UNITED KINGDOM.

       2          K.SURESH BABU ALSO KNOWN AS SUKUMARAN,
                  AGED 60 YEARS,
                  SON OF KRISHNAN KUTTY, ATTUKADAVU VEEDU,
                  PULUNTHURUTHY, CHIRAYINKEEZHU,
                  THIRUVANANTHAPURAM, NOW RESIDING AT 33,
                  HUGHES ROAD, HAYES, MIDDLESEX, LONDON UBI8QR,
                  UNITED KINGDOM.

       3          REMA,
                  AGED 56 YEARS
                  D/O.SWARASWATHY, ATTUKADAVU VEEDU, PULUNTHURUTHY,
                  CHIRAYINKEEZHU, THIRUVANANTHAPURAM, NOW RESIDING
                  AT 24, HUGHES ROAD, HAYES, MIDDLESEX, LONDON
                  UBI8QR, UNITED KINGDOM.
                                                                   2025:KER:18978
O.P (C) No.1135 of 2021
                                               2



                  (PETITIONERS 1 TO 3 ARE REPRESENTED BY THEIR
                  POWER OF ATTORNEY HOLDER K.SEKHARAN,
                  AGED 79 YEARS, S/O.M.KESAVAN, RESIDING AT
                  'SARAVANA', T.C.19/1562, NALUMUKKU,
                  KUDAPPANAKUNNU, THIRUVANANTHAPURAM - 695 043.

       4          SUDHARMA,
                  AGED 67 YEARS,
                  D/O.SARASWATHY, RESIDING AT SARAVANA,
                  T.C.19/1562, NALUMUKKU, KUDAPPANAKUNNU,
                  THIRUVANANTHAPURAM - 695 043.


                  BY ADVS.
                  S.VINOD BHAT
                  ANAGHA LAKSHMY RAMAN
                  GREESHMA CHANDRIKA.R



RESPONDENT:

                  SATHEESAN,
                  AGED 59 YEARS,
                  S/O.BHANU, RESIDING AT T.C.12/192,
                  KRISHNA BHAVAN, KUNNUKUZHI, THEKKUMMOODU,
                  PATTOM P.O.,
                  THIRUVANANTHAPURAM - 695004.


                  BY ADVS.
                  T.S.MAYA (THIYADIL)
                  M.JAYAPRASAD
                  K.A.SUNITHA


         THIS        OP         (CIVIL)   HAVING     BEEN   FINALLY   HEARD   ON
04.03.2025,               THE    COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                                                           2025:KER:18978
O.P (C) No.1135 of 2021
                                        3




                                     K.BABU, J.
                      --------------------------------------
                               O.P (C) No.1135 of 2021
                     ---------------------------------------
                        Dated this the 4th day of March, 2025

                                   JUDGMENT

The challenge in this Original Petition is to Ext.P4 order dated

01.03.2021 in I.A No.1/2020 in O.S No.1366/2017 on the file of the

Additional Munsiff's Court-II, Thiruvananthapuram, by which the

Trial Court dismissed the application filed by the plaintiffs in a suit

to reject the written statement filed by the defendant.

2. The plaintiffs are the petitioners. The sole defendant is the

respondent.

3. The Original Suit was filed for recovery of possession of the

plaint schedule property and the building by evicting the defendant.

4. The defendant entered appearance on 11.10.2017. On the

application of the defendant, on 04.02.2020, the Trial Court granted

15 days time to the defendant to file written statement. The

defendant filed the written statement accordingly on 18.02.2020.

2025:KER:18978

The plaintiffs filed an application to reject the written statement.

The Trial Court held that the defendant had placed convincing

explanation for the reason for the delay in filing the written

statement.

5. The learned counsel for the petitioners/plaintiffs submits

that the burden is on the defendant to establish the reason for the

delay. The learned counsel relied on Atcom Technologies Ltd. v.

Y.A. Chunawala & Co. [(2018) 6 SCC 639].

6. The learned counsel for the respondent/defendant

submitted that the defendant has given sufficient explanation for

the delay. The learned counsel relied on Desh Raj v. Balkishan

[(2020) 2 SCC 708] in support of her contentions.

7. As per Order VIII Rule 1 CPC, the defendant is obliged to file

the written statement within thirty days from the date of service of

summons on him. The proviso to Order VIII Rule 1 CPC enables the

Court to extend the period upto ninety days from the date of service

of summons for sufficient reasons.

2025:KER:18978

8. The Order VIII Rule 1 CPC reads thus:

"1. Written Statement.--The Defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons."

9. In Salem Advocate Bar Assn. (II) v. Union of India [(2005) 6

SCC 344], while interpreting the words "shall not be later than

ninety days" the Apex Court held thus:

"21.....There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The court has wide power to "make such order in relation to the suit as it thinks fit". Clearly, therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time-limit of 90 days. The discretion of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8 Rule 1."

10. Following the principles declared in Salem Advocate Bar 2025:KER:18978

Assn., in Atcom Technologies Ltd., (supra) the Supreme Court

observed that the onus is upon the defendant to plead and

satisfactorily demonstrate a valid reason for not filing the written

statement within the prescribed statutory period. In Desh Raj

(supra) in paragraph Nos.12 and 13 of the judgment, the supreme

Court observed thus:

"12. The judgment of Oku Tech [Oku Tech (P) Ltd. v.Sangeet Agarwal, 2016 SCC OnLine Del 6601] relied upon by the learned Single Judge is no doubt good law, as recently upheld by this Court in SCG Contracts (India) (P) Ltd. v.K.S. Chamankar Infrastructure (P) Ltd. [SCG Contracts (India) (P) Ltd. v. K.S. Chamankar Infrastructure (P) Ltd. , (2019) 12 SCC 210 : (2020) 1 SCC (Civ) 237] but its ratio concerning the mandatory nature of the timeline prescribed for filing of written statement and the lack of discretion with courts to condone any delay is applicable only to commercial disputes, as the judgment was undoubtedly rendered in the context of a commercial dispute qua the amended Order 8 Rule 1 CPC.

13. As regards the timeline for filing of written statement in a non-commercial dispute, the observations of this Court in a catena of decisions, most recently in Atcom Technologies Ltd. v.Y.A. Chunawala & Co. [Atcom Technologies Ltd. v. Y.A. Chunawala & Co., (2018) 6 SCC 639 : (2018) 3 SCC (Civ) 777] holds the field. The unamended Order 8 Rule 1 CPC continues to be directory and does not do away with the inherent discretion of courts to condone certain delays."

11. The conclusion of the above precedents is that the

provision in Order VIII Rule 1 CPC continues to be directory and 2025:KER:18978

does not do away with the inherent discretion of the Court to

condone the delay.

12. The Trial Court on the application of the defendant

condoned the delay and granted time to him to file written

statement. The observation of the Trial Court in this regard is

extracted below:

"The counter petitioner in this case had elaborately put forwarded reason if not filing written with in 90 days. The documents which the counter petitioner had relied could not made available as he was admitted in hospital due to heart attack as a backdrop of natural calamity Thus I am of the view that in this case counter petitioner had explained reason for delay and who had filed written statement on a specific order to file written statement within 15 days. Considering the cogent reasons put forwarded by the counter petitioner and also the suit is only in the preliminary stage. I feel that balancing and equities have to be considered as there is no prejudice caused to the petitioner at this stage.

In the result, the petition is dismissed. No costs."

13. Therefore, the Trial Court has considered the question of

delay and came to the conclusion that the defendant discharged his

onus to plead and satisfactorily demonstrate a valid reason for not

filing the written statement within the statutory time period.

2025:KER:18978

Therefore, the order impugned is not affected with any illegality or

impropriety warranting interference of this Court under Article 227

of the Constitution of India

The Original Petition (Civil) stands dismissed.

Sd/-

K.BABU, JUDGE KAS 2025:KER:18978

APPENDIX OF OP(C) 1135/2021

PETITIONER EXHIBITS

Exhibit P1 COPY OF PLAINT - O.S.1366/2017 OF 2ND ADDL. MUNSIFF'S COURT, THIRUVANANTHAPURAM DATED 19-09-2017

Exhibit P2 COPY OF PETITION I.A. 1/2020 IN O.S.1366/2017 OF 2ND ADDL. MUNSIFF'S COURT, THIRUVANANTHAPURAM DATED 27-02-

Exhibit P3 COPY OF THE OBJECTION IN I.A.1/2020 IN O.S.1366/2017 OF 2ND ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM DATED 10-12-2020

RESPONDENT EXHIBITS

Exhibit R-1[a] PHOTOGRAPHS 6 IN NUMBERS. Exhibit R-1[b] TRUE COPY OF THE MEDICAL RECORDS OF THE RESPONDENT ISSUED BY GOVERNMENT MEDICAL COLLEGE, TRIVANDURM Exhibit R-1[c] TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN IA 5629/2017 IN OS 1366/2017 DTD 4-1-2018 Exhibit R-1[d] TRUE COPY OF THE ORDER IN IA 5629/2017 IN OS 1366/2017 DATED 30-1-2018 OF ADDITIONAL MUNSIFF II THIRUVANANTHAPURAM Exhibit R-1[e] TRUE COPY OF THE ORDER IN CMA 29/2018 DATED 28-2-2019 OF ADDITIONAL DISTRICT & SESSIONS COURT-V THIRUVANANTHAPURAM

Exhibit R-1[f] TRUE COPY OF THE OP[TP] 248/2020 OF THE DISTRICT COURT THIRUVANANTHAPURAM 2025:KER:18978

Exhibit R-1[g] TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT AGAINST EXT R-1[F] PETITION DATED 27-11-2020 Exhibit R-1[h] TRUE COPY OF THE ORDER PASSED BY THE DISTRICT COURT THIRUVANANTHAPURAM IN OP[TP] NO. 248/2020 DATED 30-11-2020 Exhibit R-1[i] TRUE COPY OF THE DRAFT ISSUES FILED BY THE RESPONDENT IN OS NO. 1366/2017 ON 7-4-2021 Exhibit R-1[j] TRUE COPY OF THE PROCEEDINGS SHEET IN OS 1366/2017 OF ADDITIONAL MUNSIFF COURT II TVM Exhibit R-1[k] TRUE COPY OF THE SALE CERTIFICATE IN CONNECTION WITH O.S.116/1972 DATED 10- 4-1976 ISSUED BY PRINCIPAL SUB COURT THIRUVANANTHAPURAM Exhibit R-1[l] TRUE COPY OF THE SALE CERTIFICATE IN CONNECTION WITH O.S.146/1972 DATED 29- 08-1975 ISSUED BY PRINCIPAL SUB COURT THIRUVANANTHAPURAM Exhibit R-1[m] TRUE COPY OF THE DELIVERY KAICHEET IN OS 146/1972 DATED 5-1-1976 ISSUED BY SUB COURT TVM Exhibit R-1[n] THE TRUE COPY OF THE DELIVERY KAICHEET IN OS 116/1972 DATED 5-11-1980 ISSUED BY SUB COURT TVM