Delay in filing written statement when can be condoned?

 2006(1)ALLMR607, 2006(1)MhLj128

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 4689 of 2004

Decided On: 06.10.2005

Appellants: Nandlal Vitthaldas and Co. and Anr.
Vs.
Respondent: Agricultural Produce Market Committee

Hon'ble Judges/Coram:
A.H. Joshi, J.

Civil - Permission to present written statement - Plaintiff filed objection to acceptance of Written Statement - Objection allowed by lower Court.

Issues : 

Whether prayer of Permission to present written statement sustainable ? 

Holding : 

Written Statement is filed on 1st date soon application Exh. 12 was rejected. Thus, it cannot be said that party was indifferent and negligent. It was entitled to raise legal objection as to jurisdiction which it has raised. Lapse in filing documents had occurred due to improper legal advice. Failure to file Written Statement, based on failure to file application for seeking time to file Written Statement until decision of application for extension of time is thus, fully attributable to legal advice and not a lapse attributable to wish and or negligence of client. Hence, Petition allowed.

A.H. Joshi, J.

1. Rule. Rule is made returnable forthwith by consent of parties.

2. Petitioner had challenged the order passed below Exhibit 14 in Special Civil Suit No. 20 of 2003. The order impugned has been delivered relying on reported judgment of this Court in Iridium India Telecom Ltd. v. Motorola Inc., MANU/MH/0758/2003 : 2004(2)BomCR530 .

3. Heard parties at length. Perused certified record of case and the copy of roznama which is tendered at the time of hearing of which xerox copy is retained on record.

4. It reveals that summons for settlement of issues was served on the defendant present petitioner and defendant appeared; on 21st August, 2003.

5. Upon appearance, the defendant Nos. 1 and 2 filed an application for grant of time to file written statement which was granted and the case was posted on 8th October, 2003. Time so granted was again extended up to 12th November, 2003, when the defendants filed application (Exh. 12) praying for dismissal of suit in view of the provisions contained in Section 57 of the Agricultural Produce Market Committee Regulation, 1963.

6. The case was adjourned for filing say to application raising preliminary objection. However, the matter was not heard thereafter on two dates. On 11th February, 2004 Exhibit 12 was rejected and thereafter the suit was ordered to proceed as per law.

7. The case was then fixed on 3rd March, 2004. It is seen that the Written Statement was filed by the defendants on the adjourned date i.e., on 3-3-2004, the plaintiff filed objection to the acceptance of Written Statement relying upon the aforesaid Judgment of Iridium India Telecom Ltd. v. Motorola (supra). This objection was replied by the defendants present petitioners by filing say on 17-3-2004.

8. Upon hearing the Advocates of both sides, the learned trial Court has passed the impugned order holding that the Written Statement was filed after 90 days holding that the Court had not extended the time, nor it could have been extended.

9. In the present petition, the said order is challenged. The learned Advocate for the petitioners relied upon following Judgments :

(1) 2005(6) SCALE 26, Salem Advocate Bar Association Tamil Nadu v. Union of India. (2) 2005(2) Mh.L.J. (S.C.) 775 ;AIR 2005 SCW 2346, Kailash v. Nanhku and Ors. (3) MANU/MH/0653/2004 : 2004(5)BomCR573 , Chintaman Sukhdeo v. Shivaji Rhausaheb.

10. In view of these judgments and facts of the case, the learned Advocate Shri Saboo advanced the following submissions :

(a) the judgment in Iridium India Tele Ltd. v. Motorola, is a Judgment on Bombay Original Side Rules and does not govern the situation, as in the present case;

(b) the Judgment in Iridium India Tele Ltd. v. Motorola is already distinguished by this Court in 2004(4) Mh.L.J. Page 739, Chintaman Sukhdeo's case and it is held that the provision contained in Order 8, Rule 1 is directory and not mandatory;

(c) Their Lordships of the Supreme Court held in the case of Kailash v. Nanhku and Ors. and in case of Salem Advocate Bar Association Tamil Nadu v. Union of India that bar created under Order 8, Rule 1 of Civil Procedure Code, is directory and in exceptional cases, time could be extended.

11. On facts, the petitioners, have made out a case, which is exceptional namely the days lost between the date of appearance and failure to file Written Statement were spent in hearing on Exh. 12. The learned Advocate for the petitioners while he submitted Exh. 12 and proceeded for hearing thereof could have very well filed an application for grant of extension to file Written Statement until decision of Exh. 12. However, no such application was filed, apparently on mistaken belief that the objection pertains to the jurisdiction of the Court and filing of Written Statement may not be necessary until said point is decided.

12. Though the notion, due to which written statement was not filed, is not legally correct, however, a litigant always acts under legal advice and cannot be blamed for failing to file Written Statement when in such peculiar situation, said lapse cannot be described as negligence on the part of party - defendants.

13. On facts, it is seen that the written statement was punctually filed on the very next date after the application Exh. 12 was rejected. Therefore, such a lapse on the part of the party is not one which can be said to be intentional or for which there is no excuse. When the learned Advocate had filed an application raising preliminary objection, it was raised purely on a question of law. The same learned Advocate was expected to make application for grant of time to file written statement till decision of the preliminary objection raised by him. Ordinarily, the client is responsible for acts done by his advocate, however, the lawyer who has to act as per his legal expertise has to do certain acts, which he alone knows that he has to do those. Thus, the application for enlargement of time was to be filed by the Advocate who was representing the defendants. His failure to submit such application, is not attributable to the defendants as their failure, since they had reasonably depended on their Advocate for doing all legitimate acts and taking legitimate steps.

14. While Their Lordships of the Supreme Court held in case of Kailash v. Nanhku, 2005(2) Mh.L.J. (S.C.) 775 AIR 2005 SCW 2346 (supra) that time could be extended only 'in exceptional circumstances', will have to be viewed in the light of the facts of the case and the circumstances in which the party has failed to file Written Statement.

15. As narrated hereinbefore, it seems that the Written Statement is filed on 1st date soon the application Exh. 12 was rejected. Thus, it cannot be said that the party was indifferent and negligent. It was entitled to raise legal objection as to jurisdiction which it has raised. Lapse in filing documents had occurred due to improper legal advice. Failure to file Written Statement, based on failure to file application for seeking time to file Written Statement until the decision of application for extension of time is thus, fully attributable to the legal advice and not a lapse attributable to the wish and or negligence of the client.

16. In the result, petitioners have made out a case that they cannot be denied an opportunity of filing Written Statement as they have made out exceptional cases. The Judgment and order impugned, therefore, calls for interference and deserves to be set aside.

17. In the result, rule is made absolute. Order passed by the Jt. Civil Judge (Sr. Dn.) Khamgaon, dated 17-3-2004 below Exh. 14 is set aside and the learned Jt. Civil Judge, Senior Division, Khamgaon is directed to admit written statement of present petitioners on record and proceed according to law.

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