Parasmal Daulatram Jain Vs. Rameshwar Rathanlal Karwa - (High Court of Bombay) (10 Oct 2019)

Existence of a sufficient cause for permitting Defendant to file written statement is imperative for granting extension of time

MANU/MH/2781/2019

Civil

Present petition under Article 227 of Constitution of India, 1950 takes exception to an order passed by the learned Judge, whereby the learned Judge allowed the Notice of Motion and permitted the Defendant-Respondent to file written statement dated 24th March, 2015, by condoning the delay of 9 years and 79 days, subject to payment of costs of Rs. 15,000 by the defendant to the plaintiff-petitioner.

The learned Counsel for the Petitioner submitted that, the learned Judge committed a grave error in allowing the Notice of Motion, when by order dated 12th November, 2016, the Court had already recorded that, the written statement sought to be tendered by the Defendant could not be taken on record as it was not accompanied by an application seeking extension of time.

In facts of the case, it is imperative to note that even if the period prior to the restoration of the suit, by order dated 4th February, 2011, is eschewed from consideration, there is a delay of more than 5 years in filing the written statement. In fact, the learned Judge was of the clear view that, the Defendant was duty bound to explain the said delay of about 5 years satisfactorily. The learned Judge went on to record a further finding that, the claim of the Defendant that he could not file the written statement as he himself and his family members were unwell and he was required to attend to them did not constitute an exceptional circumstance and, thus, merit acceptance. The learned Judge declined to condone the delay.

The question which comes to the fore is, whether the learned Judge was justified in permitting the defendant to file the written statement, once a finding was recorded that the reason ascribed by the defendant was not satisfactory. The sole reason assigned by the learned Judge was that, in order to avoid multiplicity of proceedings and provide an opportunity to defendant to contest the claim on merits, it was necessary to grant permission to the Defendant to file the written statement.

The existence of a sufficient cause and a satisfactory reason for permitting the Defendant to file the written statement are imperative for exercise of discretion to grant extension of time. From this standpoint, the existence of a satisfactory justification for granting extension of time to file written statement assumes the character of a foundational fact for exercise of the judicious discretion by the Court. It may not be in consonance with the spirit and object of the provisions of Order VIII Rule 1 of Code of Civil Procedure, 1908 to permit the filing of the written statement on the general premise of determination of the lis on merits.

The learned Judge fell in error in permitting the Defendant to file the written statement despite recording a positive finding that, the Defendant had not satisfactorily accounted for the delay of more than five years in filing the written statement. Petition allowed.

Tags : WRITTEN STATEMENT FILING OF DELAY