:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT PETITION NO.8787 OF 2007 WRIT PETITION NO.8787 OF 2007 WRIT PETITION NO.8787 OF 2007 The Bombay Swadeshi Stores Ltd. ..Petitioners V/s M/s Aditya Hotels (P) Ltd. & Ors. ..Respondents Mr. S.R.Mishra for the petitioners Mr. Madhav J. Jamdar for the respondent No.1 CORAM : A.A. SAYED, J. CORAM : A.A. SAYED, J. CORAM : A.A. SAYED, J. DATE : 20TH FEBRUARY, 2008 DATE : 20TH FEBRUARY, 2008 DATE : 20TH FEBRUARY, 2008 P.C. 1. Rule. By consent rule made returnable forthwith and heard finally. 2. This petition has been filed taking exception to the order dated 20th August,2007 passed by the learned Judge, Additional Small Causes Court, Pune, whereby the application filed by the petitioners/ original defendants for permission to file written statement is rejected. 3. The brief facts of the case are as follows : . The suit was filed the Respondent No.1 against Petitioners for eviction of the suit premises under the Maharashtra Rent Control Act , 1999 on 24th December, 2004. The writ of summons was served on :2: 24-03-2005 and the written statement was taken on record on 12th August, 2005 subject to the say of the other side as there was a delay of more than 90 days in filing the written statement. Accordingly, on 9th of September, 2005 respondent No.1 put in his say and the trial Court after hearing, passed an order granting permission to file written statement subject to costs of Rs.200/-. This order was challenged by filing a writ petition in this Court, which came to be dismissed. The matter was carried to the Apex Court. The Apex Court was pleased to remit the matter to the trial court by an order dated 6th March, 2007 to consider the matter afresh in the light of what has been stated in Kailash vs. Kailash vs. Kailash vs. Nankhu’s Nankhu’s Nankhu’s case since no reasons were stated for acceptance of the written statement by the trial court and by this court. 4. In this background, the matter thereafter was heard by the learned trial Judge and the impugned order dated 20th August, 2007 came to be passed, rejecting the application of the petitioners/original defendants for permission to file the written statement, which was on record. The learned counsel :3: for the petitioner submitted that there is a delay of about 50 days in filing the written statement for the reasons not entirely under the control of the petitioners, who sought to lay blame on their Advocate who took time to finalize the written statement and sent it to the petitioners for signatures belatedly. 5. The learned counsel for the petitioners has invited my attention to the affidavit filed by the Advocate of the petitioners in the Honourable Supreme Court wherein in para 2, he has stated as follows : I say that the written statement was not filed in time since certain instructions were awaited from the Respondents the Original Defendants who are from Bombay.I say that I received the Writ of Summons and plaint on 31-3-2005 from the Respondents at Pune. I was instructed by my clients the Respondents to prepare paragraph wise comments on the contents of plaint. I had no details and particulars of the previous suit and other relevant documents referred to and relied upon by the petitioners, the original Plaintiffs in the said Pune suit. I say that previous suit was dismissed for default and without restoring the said suit No. 59 of 2005 and by suppressing the fact of the said suit the petitioner filed new suit before the Pune Court being Suit No.59 of 2005. I say that on or about 20-4-2005 I received the paragraph wise comments prepared by the Defendant’s office. Therefore, on the basis of these details, I prepared the written statement and :4: sent it to Bombay for signatures. Since the written statement duly signed by defendants was to be received at Pune, the same could not be filed in time in the said suit No.59 of 2005. I say that the Hon’ble Court extended the time to file the written statement." 6. Relying upon the statements in the affidavit, the learned counsel for the petitioners submitted that the fact of the receipt of para-wise comments by the Advocate on 20.04.2005 has been admitted by the Adocate. He further submitted that in any event, the facts and circumstances of the case are not such so as to completely deny the petitioners the right to defend the suit. He submitted that the petitioners have a strong case on merits and that they have made out sufficient and exceptional circumstances which were beyond their control and the delay ought to have been condoned and the petitioners ought to have allowed to file their written statement by the learned trial Court. He further submitted that grave injustice, hardship and injury would be caused to the petitioners if the written statement is not allowed to be filed. The learned counsel for the petitioners further submitted that the petitioners are having their head office in Mumbai and the matter was pending in Pune and their Advocate is also at Pune. :5: He contended that the main reason for the Honourable Supreme Court to remand the matter back was that no reasons were stated by the High Court and by the trial Court in the order dated 09.09.2005 for condoning the delay and granting permission to file the written statement. He further submitted that the delay has been satisfactorily explained and that the court ought not to have taken such a technical view of the matter particularly, in view of the fact that the petitioners are not at fault. He further submitted that the petitioners can be put to terms and the delay should be condoned. 7. The learned counsel for the Respondent No.1 on the other hand, has tendered copies of the application filed by the petitioners in the trial Court for adjournment and submitted that the trial Court has rightly passed the impugned order rejecting the application of the petitioners to file the written statement and this court may not interfere with the findings of the trial Court, in exercise of its writ jurisdiction in the matter. He submitted that it is specifically recorded by the trial court while granting time to file the written statement :6: that the time was being granted at the risk of the petitioners. He submitted that from perusal of the application, as well as the affidavit of the Advocate filed before the Hon’ble Supreme Court it is evident that no proper explanation was given for the delay and the reasons set out for the delay are not believable and that the petitioners and their counsel have been negligent in the matter. Relying upon the Order 8 Rule 1, he submitted that the written statement ought to have been filed within 30 days and in any event within the period of 90 days from the date of the service of summons. 8. I have heard the rival contention of the parties and perused the material on record, including the impugned order. It may be stated that the Honourable Supreme Court whilst remanding the matter back to the trial court, in the last para of its order dated 26.03.2007 observed as follows: "Since neither the trial Court nor the High Court have indicated any reason to justify the acceptance of the written statement after the expiry of the time fixed, we set aside the :7: orders of the trial Court and that of the High Court. The matter is remitted to the trial Court to consider the matter afresh in the light of what has been stated in Kailash’s case (supra). The appeal is allowed to the aforesaid extent with no order as to costs." In the above order, the Honourable Supreme Court has referred to the case of Kailash vs. Nanhku reported Kailash vs. Nanhku reported Kailash vs. Nanhku reported in 2005(4) SCC 480. in 2005(4) SCC 480. in 2005(4) SCC 480. In para 42 to 44 of the said decision, it is observed as follows : "42. Ordinarily, the time schedule prescribed by Order 8 Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the court. The extension of time sought for by the defendant from the court whether within 30 days or 90 :8: days, as the case may be, should not be granted just as a matter of routine and merely for the asking, more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order 8 Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended. 43. A prayer seeking time beyond 90 days for filing the written statement ought to be made in writing. In its judicial discretion exercised on well settled parameters, the court may indeed put the defendants on terms including imposition of compensatory costs and may also insist on an affidavit, medical certificate or other documentary evidence :9: (depending on the facts and circumstances of a given case) being annexed with the application seeking extension of time so as to convince the court that the prayer was founded on grounds which to exist. 44. The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the court. In no case, shall the defendant be permitted to seek extension of time when the court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel. The court may impose costs for dual purpose : (i) to deter the defendant from seeking any extension of time just for the asking , and (ii) to compensate the plaintiff for the delay and inconvenience caused to him." 9. In the case of Shaikh Salim Haji Abdul Shaikh Salim Haji Abdul Shaikh Salim Haji Abdul Khayumsab vs. Kumar reported in AIR 2006 SC 396, Khayumsab vs. Kumar reported in AIR 2006 SC 396, Khayumsab vs. Kumar reported in AIR 2006 SC 396, their Lordships of the Hon’ble Supreme Court have :10: observed in paras 9,10 and 11 as follows : 9. ......... Order 8 Rule 1 after the amendment casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Further, the nature of the provision contained in Order 8 Rule 1 is procedural. It is not a part of the substantive law. Substituted Order 8 Rule 1 intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases, causing inconvenience to the plaintiffs and the petitioners approaching the court for quick relief and also the serious inconvenience of the court faced with frequent prayers for adjournment. The object is to expedite the hearing and not to scuttle the :11: same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried. 10. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner, which would leave the court helpless to meet extraordinary situations in the ends of justice. 11, The mortality of justice at the hands of law troubles a Judge’s conscience and points an angry interrogation at the law reformer." :12: 10. Considering the principles laid down in the above decisions and the facts of the case in hand, in my view the learned trial Court ought to have condoned the delay of about 50 days and permitted the petitioners to file the written statement, which was already on record. The facts of the case are not such that it can be said that the petitioners were trying to prolong the matter and that the applications for adjournment to file the written statement were not bonafide. Pertinently, in the last of such applications for adjournment made by the petitioners dated 14.07.2005, it was stated that "the written statement was ready, but inadvertantly, defendant has not singed at one place so it is unable to file W.S. today"; and the matter was accordingly adjourned to 12th of August, 2005 at the risk of the petitioners. On 12th of August, 2005, the written statement was taken on the record subject to the say of the other side. I am informed that the issues in the matter have already been framed. Considering the facts of the case and the fact that there was no gross delay, the negligence, if any on the part of the Advocate of the petitioners or for that matter :13: even of the petitioners, ought to have been condoned by imposing appropriate cost by the trial Court. I am satisfied that sufficient cause and exceptional circumstances have been made out by the petitioners for condonation of delay in filing the written statement beyond the prescribed period of 90 days. In my view, interest of justice would be met by accepting the written statement of the petitoiners which was taken on record, subject to the payment of costs. 11. In the light of the above discussion and for the reasons stated above, the impugned order dated 20th August, 2007 is hereby set aside subject to the cost of Rs.5,000/- (Rs.Five thousand) to be paid by the petitioners to the respondent No.1 within four weeks from today. 13. At this stage, the learned counsel for the respondent No.1 seeks stay to this order for a period of six weeks. Operation of this order is accordingly stayed for a period of six weeks from today. Till the expiry of this period, the trial court shall not proceed with the hearing of the suit. :14: ( A.A. SAYED, J.) ( A.A. SAYED, J.) ( A.A. SAYED, J.) .....