-1- IN THE HIGH COURT OF BOMBAY AT GOA. WRIT PETITION NO.721/2009. 1 Mrs. Clotilda Fernandes D'Souza, major of age, widow, 2 Mr. Felix De Souza, major, married, 3 Mrs. Pulqueria Consolacao De Souza, major, married, 4 Mr. Caitan Plasin De Souza, major, married, 5 Mrs. Marites Bana Fakardp De Souza, major, married, All residing at Aradi, Oxel Siolim, Bardez, Goa. …...... Petitioners. Versus 1 Mrs. Maria Conceicao D'Souza e Noronha, major of age, married, and her husband, 2 Mr. Joseph Noronha, major of age, married, and -2- both residing at Bamonwado, Siolim, Bardez, Goa. 3 Mrs. Julie D'Souza, major of age, housewife, 4 Ms Philomena D'Souza, major of age, spinster, 5 Ms. Rosie D'Souza, major of age, spinster, 6 Mr. Anthony Hyginus D'Souza, major of age, bachelor, 7 Mr. John Julius D'Souza, major of age, married and his wife, 8 Mrs. Marina D'Souza, major of age, married, 9 Mr. Simon D'Souza, major of age, bachelor, 10 Ms. Mary D'Souza, major of age, spinster, All residing at H. No:144/1, Vaddy/Querem, Siolim, Bardez, Goa. …...... Respondents. Ms. M. Conception, Advocate for the petitioners. -3- Mr. Nigel da costa Frias, Advocate for the respondents. CORAM :- U. D. SALVI, J. DATE : 20 th January, 2010. ORAL JUDGMENT Rule, made returnable forthwith. Matter is taken up for final disposal by consent. 2. Heard. Perused petition and the annexures thereto. 3. It is the case of the petitioners that the written statement remained to be filed before the trial Court as the petitioners/defendant nos. 4 and 5 were in Dubai and this fact was brought on record at the time of their Advocate filing appearance on their behalf in the Court on 17.3.2009. It is further contended that the substantial part of their valuable defence, that they are holding the premises in question, as mundkars was revealed and brought on record in the form of their reply, to the application for temporary injunction moved by the respondents/plaintiffs in the said suit. 4. Undisputedly the defendants were served through the defendant no. 2 on 5.3.2009 and petitioner/defendant no. 2 appeared before the trial Court on 6.3.2009 and sought time to file reply to the -4- temporary injunction moved therein on behalf of the plaintiffs. On 12.3.2009 the adjourned date, the learned Advocate Mr. Colvalkar appeared on behalf of the defendants and sought time to file reply and written statement. Time was granted and the matter was adjourned for filing reply/written statement to 17.3.2009. Entries in the roznama reveal that on 17.3.2009 reply to the temporary injunction was tendered alongwith appearance of Advocate representing the defendant nos. 1 to 3 Learned Advocate Ms. V. Naik representing the defendants on that day made a statement that she had already contacted defendant nos. 4 and 5 who were then in Dubai and time be granted for filing vakalatnama on their behalf. Roznama further reveals that the matter was adjourned to 23.3.2009 for filing written statement and vakalatnama on behalf of defendant nos. 4 and 5. 5. It appears that defendant nos. 4 and 5 adopted the reply to the injunction application tendered on behalf of co-defendants on 2.4.2009 and ultimately injunction application was partly allowed vide Order dated 14.4.2009. Entries in the roznama reveal that on 9.6.2009, 6 days after 90 days period for filing written statement had expired, the learned Advocate Mr. Colvalcar for the defendants filed -5- an application for extension of time to file written statement exhibit 17. This application was strongly objected and posted for order on 19.6.2009. On that day it appears that written statement came to be tendered with application for taking the same on record. It is this application alongwith previous application for time to file reply dated 9.6.2009 at exhibit 17 were rejected by the trial Court with the impugned Order dated 13.7.2009. 6. Learned Advocate Ms. M. Conception for the petitioner submitted that there was sufficient reason for not tendering the written statement in time. Considering the defence taken and revealed through the reply to the injunction application, she argued that the learned trial Court ought to have liberally considered and allowed the defendants to place their written statement on record. She relied upon judgment reported in 2004(4) Maharashtra Law Journal 739 Chintaman Sukhdeo Kaklij Versus Shivaji Bhausaheb Gadhe and others, to advance the arguments that procedure laid down under Order 8 Rule 1 in the C.P.C. for filing the written statement cannot be construed as mandatory and, in exceptional and extraordinary circumstances, the Court has discretion to permit the defendant to file -6- written statement beyond the period of 90 days. 7. Countering these submissions learned Advocate Mr. Nigel Frias invited the attention of the Court to the contents of the applications at Exh. 17 and 19 in order to point out therefrom that the petitioners/defendants had not pleaded the cause for delay in tendering the written statement in time and therefore no blame can be put on the learned trial Court in rejecting those applications. He cited judgment of the Hon'ble Apex Court AIR 2007 Supreme Court 1574 M/s Aditya Hotels(P) Ltd versus Bombay Swadeshi Stores Ltd and others in order to expound the premise that the extention of time for filing written statement can be only by way of exception and for the reasons assigned by the defendant and also recorded in writing by the Court to its satisfaction. 8. A copy of plaint at exhibit 'B' annexed to the petition reveals that the respondents/plaintiffs are seeking declaration as owners in possession of the suit property bearing survey numbers 46/12 and 47/4 at Village Oxel Bardez and consequent direction to the talathi of the said village to delete the name of one Kolotin Fernandes appearing in the occupant column and its substitution it with the name -7- of the plaintiff nos. 1, 4, 5, 6,7,9 and 10. It is further revealed that the plaintiffs are also seeking mandatory injunction directing the defendants to demolish the illegal structure existing in the said property. According to the respondents/plaintiffs the grandmother of plaintiff no.1 Maria was called Kolotin and they laboured under the impression that name of Kolotin Fernandes was the name of their grandmother. Temporary injunction application of the plaintiffs based on the case revealed in the plaint was resisted by the defendants with the reply at exhibit “C” annexed to the petition. It appears that the petitioners/defendants defended themselves and resisted the temporary injunction application with the contention that they are the mundkars of the residential house and agricultural tenant in possession of the suit property. Written statement proposed to be brought on record by the defendants and the copy of which is found annexed at exhibit 'E' to this petition reveal that they continued to stick to the contention that they are the mundkars and agricultural tenant as contended in the reply to the injunction application. It further reveals that the defendants are claiming name Kolotin Fernandes to be one of the names of petitioner/defendant no.1. Thus it is revealed that the -8- defendants have substantial defence to be raised by way of their written statement. 9. It is true that the applications exhibits 17 and 19 are cryptic and fail to make utterance of the fact that the defendants nos. 4 and 5 were in Dubai at the material time for justifying their default in tendering written statement within prescribed time. However one cannot loose sight of the fact that the defendants were served through the defendant no. 2 and time to file reply was granted on the plea that the defendant nos. 4 and 5 were in Dubai. Denying permission to bring written statement on record some 15 days after the period of 90 prescribed therefor had lapsed would be harsh measure which could result in shutting the defence which otherwise could have figured on the record. At the same time, granting of permission to file written statement should not give a feeling to any of the defendants that extention of time to file written statement is a casual affair. The defendants therefore ought to be saddled with appropriate costs. 10. Learned Advocate Mr. N. Frias submitted that looking to the stakes involved in the matter and the delay caused the cost of Rs.25,000/- would be adequate. Learned Advocate Ms. Conception -9- submitted that the bar which is run in the house which is sought to be demolished is a country bar not yielding handsome profits. Certainly stakes of the defendants are high. Two of the defendants are gainfully employed/engaged abroad. Considering these facts and circumstances the amount of compensation sought by the respondents/ plaintiffs is reasonable. Impugned Order dated 13.7.2009 is set aside. The petitioners/ defendants are permitted to file written statement on record subject to the payment of cost of Rs.25,000/- to the respondents within three weeks. 11. Rule is made absolute in terms of above order. U. D. Salvi, J. vn*