The objection of Adv.Shaikh Majeed for the respondent
that unless enlargement of time for filing written statement is sought
there would be no occasion for granting permission to take written
statement on record is technically correct but then if the Court were
to grant permission to take written statement on record it would
imply enlargement of time to file written statement as well. The
learned counsel was apprehensive that should the petitioner's lapse
in not filing written statement within prescribed time and not even
seeking enlargement of time is condoned by allowing the petition
and directing that the reply be treated as written statement, this may
set bad precedence and render the amended provisions of Order VIII
nugatory. This apprehension can be taken care of by pointing out
that each case has to be dealt with on its own peculiar facts and the
permission now sought by the petitioner is being held as justified
only because the petitioner's application, challenging jurisdiction of
the Civil Court, Patur, was rejected, just five days before the
petitioner sought to file written statement. In view of this, the order
passed by the learned trial Judge, which instead of comprehending
the spirit of amendment to the Code of Civil Procedure, takes
technical view and curtails defences, calls for a correction by this
Court. It is always desirable that the parties are given an
opportunity of raising appropriate pleas and deciding the matter on
merits rather than gagging of one contesting parties.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.3263 OF 2005.
Pramod S/o. Baliram Wavge,
V
Sahadev S/o. Kisan Khadke,
CORAM: R.C. CHAVAN, J.
DATED : DECEMBER 22, 2006.
Citation: 2007(3) MHLJ 564
2. By this petition the petitioner-defendant in Regular Civil
Suit No.17/2004 takes exception to rejection of his application for
permission to file reply and written statement on record.
3. The petitioner/ defendant had appeared in the said
proceedings before Civil Judge Jr.Dn., Patur on 16.07.2004. Instead
of filing written statement on the same day he filed an application
Exh.11 under Section 9-A of the Code of Civil Procedure taking
exception to jurisdiction of the Civil Court. This application was
decided by the learned Judge on 28.01.2005. On 03.02.2005 i.e.
five days after rejection of his application under Section 9-A of the
C.P.C., the defendant filed application for permission to file reply
and written statement on record. With this application he annexed
reply to application under Order 39 Rules 1 and 2, but did not annex
any written statement.
4. The learned Judge considered plaintiff's objection to the
leave sought by the defendant to file reply and written statement
and rejected the application in toto, relying on judgment of this
Court in Chintaman Sukhdeo vs. Shivaji Bhausaheb, reported at
2004(4) Mh.L.J. 739. Among other things, the learned Judge
observed that the written statement was not submitted along with
the application.
5. I have heard Adv. Joshi, learned counsel for the petitioner
and Adv. Shaikh Majeed, learned counsel for the respondent.
6. Adv. Joshi, learned counsel for the petitioner, states that
his client did not and even now, does not, intend to file any different
written statement and reply to application under Order 39 Rules 1
and 2 of the Code was itself to be the written statement to the plaint.
He stated that his client would not seek amendment to the written
statement unless there are any subsequent developments, warranting
amendment. As of now, his client would go to trial on the basis of
this reply. Had this position been made clear before the learned trial
Judge, may be the learned trial Judge would have taken a different
view.
7. Advocate Shaikh Majeed, learned counsel for the
respondent, submitted that in view of the observations of this Court
in Chintaman Sukhdeo Vs. Shivaji Bhausaheb, unless the petitioner
made out an exceptional or extraordinary case the discretion to
permit the petitioner to file written statement beyond the period of
90 days could not have been exercised and therefore, the learned
trial Judge has rightly rejected petitioners application.
8. Observations in paragraph 29 of the judgment in
Chintaman Vs. Shivaji have to be read along with the context which
is provided by paragraph 22 of the judgment, where the Division
Bench of this Court observed that the intention was not to penalise
the defendant who does not submit defence in the prescribed period.
The changes in the Civil Procedure Code were aimed at curtailing
delays and not defences. The learned trial Judge should have seen
that after his rejection of the petitioner's application taking objection
to the jurisdiction of the Court the petitioner had come up with the
written statement within five days. Therefore, exceptional or
extraordinary case did exist for the learned Judge to have exercised
his discretion. It seems that the learned Judge felt that application
at Exh.16 whereby the petitioner sought to file reply and written
statement on record was just another device for prolonging the
proceedings, since the petitioner had not filed written statement
along with application. Clarification by the learned counsel for the
petitioner would take care of this aspect.
9. The objection of Adv.Shaikh Majeed for the respondent
that unless enlargement of time for filing written statement is sought
there would be no occasion for granting permission to take written
statement on record is technically correct but then if the Court were
to grant permission to take written statement on record it would
imply enlargement of time to file written statement as well. The
learned counsel was apprehensive that should the petitioner's lapse
in not filing written statement within prescribed time and not even
seeking enlargement of time is condoned by allowing the petition
and directing that the reply be treated as written statement, this may
set bad precedence and render the amended provisions of Order VIII
nugatory. This apprehension can be taken care of by pointing out
that each case has to be dealt with on its own peculiar facts and the
permission now sought by the petitioner is being held as justified
only because the petitioner's application, challenging jurisdiction of
the Civil Court, Patur, was rejected, just five days before the
petitioner sought to file written statement. In view of this, the order
passed by the learned trial Judge, which instead of comprehending
the spirit of amendment to the Code of Civil Procedure, takes
technical view and curtails defences, calls for a correction by this
Court. It is always desirable that the parties are given an
opportunity of raising appropriate pleas and deciding the matter on
merits rather than gagging of one contesting parties.
10. In view of this, the petition is allowed.
Impugned order is set aside.
Reply to application under Order 39 Rules 1 and 2 of
C.P.C. filed by the petitioner is directed to be taken on record as
reply to application as well as written statement in the suit.
Rule made absolute in the above terms.
No order as to costs.
Print Page
that unless enlargement of time for filing written statement is sought
there would be no occasion for granting permission to take written
statement on record is technically correct but then if the Court were
to grant permission to take written statement on record it would
imply enlargement of time to file written statement as well. The
learned counsel was apprehensive that should the petitioner's lapse
in not filing written statement within prescribed time and not even
seeking enlargement of time is condoned by allowing the petition
and directing that the reply be treated as written statement, this may
set bad precedence and render the amended provisions of Order VIII
nugatory. This apprehension can be taken care of by pointing out
that each case has to be dealt with on its own peculiar facts and the
permission now sought by the petitioner is being held as justified
only because the petitioner's application, challenging jurisdiction of
the Civil Court, Patur, was rejected, just five days before the
petitioner sought to file written statement. In view of this, the order
passed by the learned trial Judge, which instead of comprehending
the spirit of amendment to the Code of Civil Procedure, takes
technical view and curtails defences, calls for a correction by this
Court. It is always desirable that the parties are given an
opportunity of raising appropriate pleas and deciding the matter on
merits rather than gagging of one contesting parties.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.3263 OF 2005.
Pramod S/o. Baliram Wavge,
V
Sahadev S/o. Kisan Khadke,
CORAM: R.C. CHAVAN, J.
DATED : DECEMBER 22, 2006.
Citation: 2007(3) MHLJ 564
2. By this petition the petitioner-defendant in Regular Civil
Suit No.17/2004 takes exception to rejection of his application for
permission to file reply and written statement on record.
3. The petitioner/ defendant had appeared in the said
proceedings before Civil Judge Jr.Dn., Patur on 16.07.2004. Instead
of filing written statement on the same day he filed an application
Exh.11 under Section 9-A of the Code of Civil Procedure taking
exception to jurisdiction of the Civil Court. This application was
decided by the learned Judge on 28.01.2005. On 03.02.2005 i.e.
five days after rejection of his application under Section 9-A of the
C.P.C., the defendant filed application for permission to file reply
and written statement on record. With this application he annexed
reply to application under Order 39 Rules 1 and 2, but did not annex
any written statement.
4. The learned Judge considered plaintiff's objection to the
leave sought by the defendant to file reply and written statement
and rejected the application in toto, relying on judgment of this
Court in Chintaman Sukhdeo vs. Shivaji Bhausaheb, reported at
2004(4) Mh.L.J. 739. Among other things, the learned Judge
observed that the written statement was not submitted along with
the application.
5. I have heard Adv. Joshi, learned counsel for the petitioner
and Adv. Shaikh Majeed, learned counsel for the respondent.
6. Adv. Joshi, learned counsel for the petitioner, states that
his client did not and even now, does not, intend to file any different
written statement and reply to application under Order 39 Rules 1
and 2 of the Code was itself to be the written statement to the plaint.
He stated that his client would not seek amendment to the written
statement unless there are any subsequent developments, warranting
amendment. As of now, his client would go to trial on the basis of
this reply. Had this position been made clear before the learned trial
Judge, may be the learned trial Judge would have taken a different
view.
7. Advocate Shaikh Majeed, learned counsel for the
respondent, submitted that in view of the observations of this Court
in Chintaman Sukhdeo Vs. Shivaji Bhausaheb, unless the petitioner
made out an exceptional or extraordinary case the discretion to
permit the petitioner to file written statement beyond the period of
90 days could not have been exercised and therefore, the learned
trial Judge has rightly rejected petitioners application.
8. Observations in paragraph 29 of the judgment in
Chintaman Vs. Shivaji have to be read along with the context which
is provided by paragraph 22 of the judgment, where the Division
Bench of this Court observed that the intention was not to penalise
the defendant who does not submit defence in the prescribed period.
The changes in the Civil Procedure Code were aimed at curtailing
delays and not defences. The learned trial Judge should have seen
that after his rejection of the petitioner's application taking objection
to the jurisdiction of the Court the petitioner had come up with the
written statement within five days. Therefore, exceptional or
extraordinary case did exist for the learned Judge to have exercised
his discretion. It seems that the learned Judge felt that application
at Exh.16 whereby the petitioner sought to file reply and written
statement on record was just another device for prolonging the
proceedings, since the petitioner had not filed written statement
along with application. Clarification by the learned counsel for the
petitioner would take care of this aspect.
9. The objection of Adv.Shaikh Majeed for the respondent
that unless enlargement of time for filing written statement is sought
there would be no occasion for granting permission to take written
statement on record is technically correct but then if the Court were
to grant permission to take written statement on record it would
imply enlargement of time to file written statement as well. The
learned counsel was apprehensive that should the petitioner's lapse
in not filing written statement within prescribed time and not even
seeking enlargement of time is condoned by allowing the petition
and directing that the reply be treated as written statement, this may
set bad precedence and render the amended provisions of Order VIII
nugatory. This apprehension can be taken care of by pointing out
that each case has to be dealt with on its own peculiar facts and the
permission now sought by the petitioner is being held as justified
only because the petitioner's application, challenging jurisdiction of
the Civil Court, Patur, was rejected, just five days before the
petitioner sought to file written statement. In view of this, the order
passed by the learned trial Judge, which instead of comprehending
the spirit of amendment to the Code of Civil Procedure, takes
technical view and curtails defences, calls for a correction by this
Court. It is always desirable that the parties are given an
opportunity of raising appropriate pleas and deciding the matter on
merits rather than gagging of one contesting parties.
10. In view of this, the petition is allowed.
Impugned order is set aside.
Reply to application under Order 39 Rules 1 and 2 of
C.P.C. filed by the petitioner is directed to be taken on record as
reply to application as well as written statement in the suit.
Rule made absolute in the above terms.
No order as to costs.
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