This Court observed that the effect of filing such a pursis is that the Written Statement is deemed to have been filed on the date on which the reply was filed to the application for temporary injunction and, therefore, in such a case, there is no requirement of the Defendant making out a case of existence of exceptional or extra ordinary circumstances.
5. In the present case the Petitioners were fully aware of the contents of the reply which was filed way back in February, 2007. As a result of the pursis , the Written Statement will have to be treated as filed on the date on which the said reply was filed and therefore, it will have to be held that there is no delay in filing the Written Statement.
6. The learned counsel appearing for the Petitioners submitted that the delay in filing the pursis has to be explained. Whether it is necessary to explain the delay in filing the pursis will depend upon the facts and circumstances of each case. In a given case, if a Defendant chooses to file such a pursis after the recording of evidence has commenced, an explanation for delay will have to be given by the Defendants while filing such a pursis. If such a pursis of adoption is filed belatedly, the Court may not accept it mechanically. The Court can certainly reject the pursis filed belatedly if it is not bona fide. But otherwise such a pursis will have to be accepted and the reply to application for temporary injunction will have to be treated as the written statement provided the reply has been filed within 90 days of the date of service of summons.
Bombay High Court
Kuldeep Umraosingh Ostwal & Anr vs Chandrakant N. Patel & 10 Ors on 9 February, 2010
CORAM : A.S.OKA, J.
DATE : 9TH FEBRUARY, 2010
Submissions of the learned counsel appearing for the Petitioners were heard yesterday. By this Writ Petition under Article 227 of the Constitution of India, the Petitioners who are the Original Plaintiffs have taken an exception to an order dated 30th January, 2010 passed by the trial Court on a pursis filed by the Advocate for the 1st to 7th Respondents. By the said pursis, the said Respondents ( Defendants ) adopted their reply at Exhibit 12 as their Written Statement. The said reply at Exhibit -12 was filed to an application for temporary injunction. The Trial Court by the impugned order accepted the pursis and directed that the reply was already on record which shall be treated as the Written Statement. The learned counsel appearing for the Petitioners submitted that there was no Written Statement filed by the concerned Defendants within the outer limit provided under Rule 1 of Order VIII of the Code of 2
Civil Procedure, 1908 (hereinafter referred to "as the said Code") as amended with effect from 1st July, 2002. He submitted that though the rule has been held to be directory, the Apex Court has held that the time for filing Written Statement cannot be extended for asking and only in rare and exceptional cases that the Court can extend the time for cogent reasons to be recorded. He submitted that in the pursis filed by the 1st to 7th Respondents on 29th January, 2010, no reasons have been assigned firstly for not filing the Written Statement within the period provided by the statute and secondly for not filing the pursis earlier. He has placed reliance on a decision of the Apex Court in the case of Mohammed Yusuf v. Fali Mohammad & Ors., [(2009)3 SCC 513 ]. He also placed reliance on another decision of the Apex Court in the case of Kailash v. Nanhku & Ors., [(2005)4 SCC 480 ]. Lastly he placed reliance on a decision of the larger bench of the Apex Court in the case of R.N. Jadi & Brothers & Ors. v. Subhashchandra, [(2007)6 SCC 420 ]. He submitted that the period provided in Rule 1 of Order VIII of the said Code cannot be extended for asking and in the present case, there are no reasons assigned for the delay in filing the Written Statement and even the delay in filing the pursis. He invited my attention to the relevant observations of the Apex Court in aforesaid decisions.
2. I have given a careful consideration to the submissions. It is not in dispute that a reply to the application for temporary injunction which is now adopted as the Written Statement was filed well within 90 3
days from the date on which the summons of the suit was served to the Defendants. The said reply is in the form of pleadings which is duly verified in accordance with Rule 15 of Order VI of the said Code. The effect of accepting the pursis filed by the concerned Defendants is that the reply which is already on record since 2007 will be treated as the Written Statement of the concerned Defendants. The practice which is consistently followed in the Civil Courts in various Districts in the State of Maharashtra is that normally a very exhaustive reply is filed to an application for temporary injunction. Such reply invariably deals with the averments made in the Plaint inasmuch as generally an application for temporary injunction which is filed with the Plaint is either a replica of the Plaint or in many cases certain paragraphs of the Plaint are adopted in such applications. Due to the very nature of the application for temporary injunction, such reply is filed immediately after service either to avoid an ad-interim order being passed or to get an ad-interim order vacated. Normally, in Districts, such reply is in the form of a pleading which is duly verified in accordance with Rule 15 of Order VI of the said Code. There is a routine practice followed in Civil Courts in Districts to adopt such a reply as the written statement. In the said Civil Courts, suit summons as well as the notice of application for temporary injunction filed along with the suit is served together. Therefore, the practice of allowing a defendant to adopt the reply to application for temporary injunction as a written statement has been consistently followed by Mofussil Courts in the State. It is a healthy practice provided the pursis 4
adopting the reply as a written statement is not filed belatedly. However, the practice followed in City Civil Court in Mumbai is totally different. In case of suits filed in the said Court, suit summons is not served with the Notice of Motion for injunction and the reply filed to the Notice of Motion is in the form of an affidavit which is not verified in accordance with Rule 15 of Order VI of the said Code.
3. At this stage, it will be necessary to consider the decision of this Court dated 3rd May, 2007 passed in Writ Petition No.8286 of 2006 in the case of Narayan P. Jadhav & Anr. v. Shakuntala Ghansham Shah & Ors. In Paragraph 6 of the said decision, this Court has observed thus:- "6. The effective prayer made at Exh.94 was that the reply filed at Exh.30 should be treated as the written statement. The reply was filed on 2nd May 2003 i.e. well within 30 days from the date of service of summons to the Petitioners. As the contention of the Petitioners was that the said reply which was filed within the time provided by law for filing a written statement should be treated as their written statement, there is no question of the Petitioners making out a case of exceptional or extraordinary circumstances. The learned Trial Judge ought to have allowed the Petitioners to file the pursis. The effect of filing pursis would have been to treat the reply filed on 2nd May 2003 as the written statement. The effect of acceptance of the pursis will be that the written statement will have to be treated as filed on 2nd May 2003. Therefore, in the facts of the case, there was no delay at all in filing the written statement on the part of the Petitioners in view of subsequent pursis sought to be filed by them. Therefore, Petition must succeed and the impugned order will have to be quashed and set aside.
4. This Court observed that the effect of filing such a pursis is that the Written Statement is deemed to have been filed on the date on which the reply was filed to the application for temporary injunction and, therefore, in such a case, there is no requirement of the Defendant making out a case of existence of exceptional or extra ordinary circumstances.
5. In the present case the Petitioners were fully aware of the contents of the reply which was filed way back in February, 2007. As a result of the pursis , the Written Statement will have to be treated as filed on the date on which the said reply was filed and therefore, it will have to be held that there is no delay in filing the Written Statement.
6. The learned counsel appearing for the Petitioners submitted that the delay in filing the pursis has to be explained. Whether it is necessary to explain the delay in filing the pursis will depend upon the facts and circumstances of each case. In a given case, if a Defendant chooses to file such a pursis after the recording of evidence has commenced, an explanation for delay will have to be given by the Defendants while filing such a pursis. If such a pursis of adoption is filed belatedly, the Court may not accept it mechanically. The Court can certainly reject the pursis filed belatedly if it is not bona fide. But otherwise such a pursis will have to be accepted and the reply to application for temporary injunction will have to be treated as the written
statement provided the reply has been filed within 90 days of the date of service of summons.
7. In the present case, the effect of the impugned order is that the reply which is filed in the year 2007 will be treated as a Written Statement and the concerned Defendants will be entitled to contest the suit. As a substantial justice has been done by the impugned order, this is not a case where interference can be made in extra ordinary jurisdiction of this Court under 227 of the Constitution of India. Hence, the Writ Petition is rejected.
8. The learned counsel appearing for the Petitioners, at this stage, submits that the suit has been kept tomorrow for dismissal as the Petitioners did not file an affidavit in lieu of examination-in-chief as they desire to challenge the impugned order.
9. Time to file affidavit in lieu of examination-in-chief is extended by a period of four weeks from today.
(A.S.OKA, J)
ash/
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