1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.406 OF 2010 AND WRIT PETITION NO.407 OF 2010 M/s Saisons Communication Pvt. Ltd ...Petitioners vs. M/s MIRC Electronics Ltd ...Respondent -- Mr.R.M.Agarwal with Mr. Girish Agarwal for the petitioners. Mr. A.G. Damle with Ms Kavita Shah for the respondent. -- CORAM :A.S.OKA,J. DATE : February 5th , 2010 JUDGMENT : 1 Considering the narrow controversy involved, these petitions were taken up for final disposal at admission stage. 2 The facts of the case in both the petitions are identical. The petitioner is the original plaintiff and the respondent is the original defendant. In the suits filed by the petitioner, the respondent filed counter- claims. The petitioner failed to file written statements to the counter claims. Therefore, an application was made in both the suits for grant of permission to file written statement to the counter claim. Along with the applications,the written statements were tendered. The said applications were opposed by the respondent by filing a reply. It was contended that there was a gross 2 delay of more than 1300 days in filing written statements. By the impugned order, the learned trial judge rejected the applications. 3 The learned counsel for the petitioner submitted that proviso to rule 1 of Order VIII of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said code") has been held to be directory. He placed reliance on a decision of the Apex Court dated the 11th April 2008 in the case of Municipal Corporation of Delhi Versus Haracharan Dass Gupta Constructions Pvt Ltd in Civil Appeal No. 2800 of 2008 for pointing out that the Apex Court condoned delay of three years in filing written statement. The learned counsel appearing for the respondent opposed the petition by submitting that there was no explanation for gross delay of more than three years in the applications filed by the petitioner and therefore the trial court was right in rejecting the applications. He pointed out that not only that the petitioner has filed affidavit in liew of examination- in- chief of its witness but even cross-examination of the said witness has commenced. He submitted that no interference is called for. 4 I have given careful consideration to the submissions. It is true that a counter- claim is in the nature of a cross suit. However, as far as written statement to a counter claim is concerned, there is a separate provision enacted. Rule 6-A of Order VIII of the said code deals with a counter claim by a defendant. Sub- rule 3 of the said rule provides that the plaintiff shall be at liberty to file a written statement in answer to the counter claim of the defendant within such period as may be fixed by the Court. Thus no specific period is provided for filing a written statement to the counter- 3 claim. Rule 1 of Order VIII of the said code is applicable to the written statements to be filed to the suits. By the Code of Civil Procedure (Amendment) Act, 2002 the legislature had chosen to amend rule 1 of order VIII by incorporating the outer limit of 90 days for filing written to a suit. However the legislature has not chosen to amend sub-rule 3 of rule 6-A and therefore, as far as the written statement to the counter claim is concerned, constraints of rule 1 of order VIII will have no application in as much as sub-rule 3 of rule 6-A of order VIII will apply to such written statement. Even after amendment of the year 2002, discretion of the Court to fix a period for filing written statement to the counter claim has been retained. Though Rule 1 of Order VIII was amended in the year 2002 by incorporating an outer limit for filing written statement to a suit, the Legislature has chosen not to amend Sub-rule 3 of Rule 6A of Order VIII of the said Code. Therefore, the time within which written statement is to be filed is left to the discretion of the court. Hence, the decisions of the Apex Court holding that time provided in rule 1 of Order VIII (as amended) can be extended only for exceptional reasons will not apply to the case where a written statement is to be filed to a counter-claim. However, while fixing the time for filing written statement to a counter claim, the Court cannot altogether ignore the intention of the legislature reflected from the amendment carried out to rule 1 of order VIII. 5. Now coming to the facts of the case, while passing the impugned order, the learned trial judge has proceeded on assumption that maximum period of 90 days will be available for filing written statement to the counter claim. The learned it trial judge has ignored the provisions of sub -rule 3 of rule 6A of order VIII of the 4 said Code. The written statement cum counter claim was filed by the respondent on the 1st October 2004. The application on which impugned order has been passed was filed on 8th September 2008. It is true that there is no explanation for the delay in the said application. An opportunity can be always granted to the petitioner to file a fresh application incorporating reasons for the delay. If such a course adopted, it will delay the hearing of the suit. Affidavit in lieu of examination-in- chief has been already filed on behalf of the petitioner. It is pertinent to note that the written statements to the counter claim have been tendered along with the applications filed by the petitioner. Therefore, in the interests of justice, instead of prolonging the suit any further, the petitioner can be permitted to file written statements subject to payment of heavy costs. The prejudice, if any, caused to the respondent will be adequately compensated if the amount of costs is quantified at Rs. 10,000 in each case. 6. Hence, writ petitions are disposed of by passing the following order: (i) The impugned orders dated 23rd of November 2009 are quashed and set aside and the applications dated 8th September 2009 are allowed. (ii) The trial Court shall take the written statements to the counter claim on record subject to the petitioner paying costs of Rs. 10,000 in each case to the respondent within a period of six weeks from today. The payment of costs is a condition precedent. 5 (iii) After the written statement is taken on record, the trial court will have to examine the question of framing additional issues on the basis of the written statement. (iv) The Petitions allowed in above terms JUDGE ash