1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 5215, 5235, 5243, 5245 OF 2008. Jagirsingh Sadasingh, Balvindersingh Gill, Ghisaram Agrawal, Nirmaljeetsingh Cheema Vs. Marotrao Tulsiram Tadaskar & Others ------------------------------------------------------------------------------------- ------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. ------------------------------------------------------------------------------------- Smt Arpana Tamshulkar dv. for petitioner. Shri A. M.Quazi Adv. for respondents CORAM: C. L. PANGARKAR J. DATED: 12 th JUNE, 2009. All these four petitions are being disposed of by the common order since the parties to the petition are identical. Respondents/plaintiffs have instituted a civil suit for possession of the suit property. After the suit was filed the petitioners-defendants appeared in the Civil Suit on 05.01.2007. They could not file 2 Written Statement within 90 days as stipulated by Order 8 Rule 1. Since the Written Statement was not filed within a period of 90 days Court passed an order that defendants having not filed Written Statement suit shall proceed without Written Statement. This order came to be passed by the Court on 26.11.2007. Thereafter on 21.02.2008 the petitioners moved an application for setting aside the order dated 26.11.2007 and permission to file Written Statement. Petitioners had contended in the said application that since they came to know of the death of the plaintiff they thought that they would not be required to file Written Statement. After Legal Representatives were brought on record there was misunderstanding between them and their lawyer and therefore no Written Statement was filed. They contend that this was their bonafide mistake and therefore Court should condone it and accept the Written Statement. Learned Civil Judge heard the parties and rejected the application and defendants-petitioners therefore feel aggrieved. 3 I have heard the learned counsel for the petitioners as well as respondents. Learned counsel for the petitioners submits that the petitioners were under impression that since the plaintiff had died there was no need for them to file Written Statement. She submits that the lawyer had given them wrong advise and due to the wrong advice the Written Statement could not be filed. She submits that the petitioners who are defendants should not be allowed to suffer for the mistake on the part of the lawyer. It would be necessary to note down the sequence of the events that took place after the defendants had put in their appearance in the Court. It is clear that the defendants had put in their appearance for the first time in Court on 05.01.2007 and plaintiff died on 08.01.2007. The intimation of death of the plaintiff was given to Court on 02.02.2007. Plaintiff’s heir filed application on 30.03.2007 and applied for substitution. The defendants had filed reply to the application for substitution of the legal representatives and an order was passed by the Court 4 and legal representatives were actually brought on record on 24.04.2007. After 24.04.2007 the defendants petitioners had sought time to file Written Statement on 4 occasions i. e. right from 21.06.2007 to 26.11.2007. During this period the defendants did not file Written Statement. It was expected of the defendants to have atleast filed Written Statement within 90 days from 24.04.2007 after the legal representatives were brought on record by the plaintiffs. Even from 24.04.2007 the defendants did not care to file Written Statement within 90 days. The contention that plaintiff had died and therefore there was no need to file Written Statement or that they carried such impression could not survive atleast after 24.04.2007 as they were aware that the legal representatives were brought on record and there is no question of suit having abated. The contention that the lawyer had given a wrong advise also cannot be accepted because of the fact that lawyer has been moving applications for time to file Written Statement in the Court. Such applications were made on 5 21.06.2007, 16.07.2007, 05.10.2007 and 26.11.2007. There are no bonafides shown on the part of the petitioners. They have not shown any sufficient grounds for condoning the delay in filing Written Statement. The Supreme Court has in Mohammed Yusuf Vs. Faji Mohammad & Ors. 2009(2) All Maharashtra Law Reporter 486 quotating decision in 2005(4) Supreme Court Cases 480 has observed as follows: “13. Although in view of the terminologies used therein the period of 90 days prescribed for filing wriutten statement appears to be a mandatory provision, this Court in Kailash (supra) upon taking into consideration the fact that in a given case the defendants may face extreme hardship in not being able to defend the suit only because he had not filed written statement within a period of 90 days, opined that the said provision was directory in nature. However, while soholding this Court in no undertain terms stated that defendants may be permitted to file written statement after expiry of period of 90 days only on exceptional situation. The question came up for consideration before this Court in M. Srinivasa Prasad & Ors. Vs. The Controller & Auditor General of India & Ors. 2007(5) SCALE 171, wherein a Division Benchg of this Court upon noticing Kailash [2005(50 ALL MR (S. C.) 689] (supra) held as under: “7.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 time fixed, we set aside the orders of the trial Court and that of the High Court. The matter is remitted to 6 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.” 14. The matter was yet again considered by a three Judge Bench of this Court in R. N. Jadfi & Brothers and Ors. Vs. Subhashchandra (2007) 6 SCC 420:[2007(5) ALL MR (S. C.) 689] (supra) in his concurring judgment stated the law thus: “14.It is true that procedure is the handmaid of justice. The court must always be anxious to do justice and to prevent victories by way of technical knockouts. But how far that concept can be stretched in the context of the amendments brought to the Code and in the light of the mischief that was sought to be averted is a question that has to be seriously considered. I am conscious that I was a party to the decision in Kailash Vs. Nanhku which held that the provision was directory and not mandatory. But there could be situations where even a procedural provisional could be construed a mandatory, no doubt retaining a power in the Court in an appropriate case, to exercise a jurisdiction to take out the rigour of that provision or to mitigate genuine hardship It was in that contest that in Kailash Vs. Nanhku it was stated that the extension of time beyond 90 days was not automatic and that the court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from the time limit fixed by the Code and the power inhering in the court in terms of Section 148 of the Code. Kailash is no authority for receiving written statement, after the expiry of the period permitted by law, in a routine manner. 15.A dispensation that makes Order 8 Rule 1 directory leaving it to the Courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the 7 Code. It is, therefore, necessary to emphasise that the grant of extension of time beyond 30 days is not automatic, that it should be exercises with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the Court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order 8 Rule 1 must be adhered to and that only in rate and exceptional case, will the breach thereof will be condoned. Such an approach by courts alone can carry forward the legislative intent of avoiding delays of at least in curtailing the delays in the disposal of suits filed in courts. The lament of Lord Denning in Allen Vs. Sir Alfred MdAlpine & Sons that law’s delay have been intolerable and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times?” In the instant case no sufficient cause on exceptional circumstance is shown. On the other hand there is total negligence. Writ Petitions a are therefore liable to be dismissed in limine. They are accordingly dismissed. JUDGE 8 svk