WP. 2103-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 2103 OF 2011 Vishant Ebenezer Avinash ...Petitioner Vs. Ignatrous Alexander Alphonso & Anr. ...Respondents *** Mr. Jayesh Bhatt, for the Petitioner. Mr. P. S. Dani i/b Khan Javed Akhtar, for Respondent No. 1. *** CORAM: V. M. KANADE J. DATE : MARCH 23, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the petitioner and the learned counsel appearing on behalf of respondent No.1. The petitioner by this petition, which is filed under Art. 227 of the Constitution of India is challenging the order passed by the Small Causes Court dated 5th August, 2010, rejecting his application for condonation of delay in filing the written-statement and also the order passed in revision by the Division Bench of the Small Causes Court whereby the order dated 1st December, 2010 it was held that the petition is not maintainable. WP. 2103-11 - 2 - 2. The brief facts are that the respondents/plaintiffs filed a suit for eviction of the petitioner/original defendant on the ground that he is a gratuitous licensee. The petitioner was served with writ of summons and copy of plaint on 22-4-2009. In view of the provisions of Order VIII, Rule 1 of the Civil Procedure Code, the petitioner ought to have filed his written-statement within 30 days from the date of service of writ of summons. However, written-statement was not filed within the aforesaid period. Even thereafter written-statement was not filed till 22-7-2009. An application thereafter was made by the petitioner in condoning the delay in filing the written-statement dated 14th August, 2009. In the said Application, it was contended that his sister had come to India at about the same time and since there were various proceedings in the matter, the written-statement could be affirmed on 14th August, 2009. This application for condonation of delay was immediately opposed by the plaintiff by filing the reply. The trial Court after referring to various judgments of this Court and the Apex Court observed that the delay which has occurred beyond the period of 90 days was about three months. The trial Court observed that no case was made out by the petitioner for exercising the discretion vested in the Court in favour of the defendant. Against this order, the petitioner preferred the revision WP. 2103-11 - 3 - application before the Division Bench of the Small Causes Court. The Division Bench, however, relying on the judgment of the learned Single Judge of this Court was pleased to hold that the revision application is not maintainable. 3. The learned counsel appearing on behalf of the petitioner submitted that though specific ground and further particulars ought to have been given in the application for condonation of delay, the application did not contain these particulars. It is submitted that, however, petitioner was keenly contesting the case since he had filed various applications in the said suit. Secondly, it is contended that the written-statement was affirmed on 14th August, 2009 and if the said fact is taken into consideration, the delay would be a couple of weeks. He submitted that, however, he personally was unwell and had to be admitted in the hospital after he collapsed in the Court and therefore, was not available for 2-3 months. He submitted that he was personally looking after work of the petitioner & his father for almost two decades and therefore, the petitioner had opted to wait till his recovery. He submitted that particulars were not mentioned in the application for condonation of delay which was filed in October, 2009, the written- statement itself was affirmed on 14th August, 2009. He submitted that WP. 2103-11 - 4 - these particulars were mentioned in the revision application and also in the writ petition. Reliance was placed on the judgment of the learned Single Judge of this Court in the case of – Methodist Episcopal Church, Nagpur & Ors., Petitioners vs. Methodist Church in India, Mumbai & Ors., Respondents [2009(4) Mh.L.J. 589]. 4. On the other hand, Mr. Dani, the learned counsel appearing on behalf of Respondent No.1, opposed the submissions made by the learned counsel for the petitioner. He submitted that practically no grounds whatsoever were stated in the application for condonation of delay. He submitted that after the Amendment of 1999, the Apex Court has an occasion to consider the provision of Order VIII, Rule 1 of the Civil Procedure Code and the Apex Court in number of judgments had held that though the said provision was held to be directory provision, yet delay caused beyond the period of 90 days could not be condoned by the Court in a routine manner. He invited my attention to the number of judgments of the Apex Court and this Court, and more particularly the judgment in the case of – R. N. Jadi & Brothers & Ors. vs. Subhashchandra, [2008(3) Bom. C. R. 386]. It is submitted that ordinarily written-statement has to be filed within 30 days from the date of service of writ of summons or thereafter within 90 days after WP. 2103-11 - 5 - satisfying the Court that there were sufficient grounds for not filing the written statement within 90 days and thereafter the Court was expected to give special reasons for condoning the delay. 5. I have heard both the counsel at length. The application which was made by the petitioner for condonation of delay, does not give any particulars whatsoever as to the reasons regarding the delay caused beyond the period of 90 days. However, in the revision application and in this petition various particulars have been given by the petitioner regarding the reasons why the delay was caused. It is an admitted position that the written-statement was drafted and affirmed on 14th August, 2009 and there was a delay of 2-3 weeks after the period of 90 days was over. The petitioner, however, has stated in paragraph 11 of the application that his advocate when he collapsed in the Court on 22-6-2009, had to be admitted to ICU at Saifee Hospital, Charni Road where he was put on a ventilator. He has further stated that his advocate was hospitalised till 22-7-2009 and was advised to take bed rest for 2 months. Even during this period his advocate prepared written-statement on 14-8-2009. An application was also prepared to try issue of jurisdiction as a preliminary issue on 14-8-2009. The petitioner has stated that he was given understanding that if the said application for WP. 2103-11 - 6 - preliminary issue was decided in his favour, the issue of filing written- statement would become irrelevant. 6. In my view, the said ground and the reasons given by the petitioner in paragraph 11 is a plausible explanation for not filing the written statement and applying for condonation of delay immediately. The fact that the petitioner’s advocate was hospitalised on 22-6-2009 is not disputed by respondent No.1. Advocate who appears on behalf of the litigant very often occupies a special position of trust in the mind of the litigant, and it is possible that since he was indisposed, the written statement could not be filed in time. This Court has observed that procedure is handmade of justice and if sufficient explanation is given, as far as possible the Court should ensure that a case should be decided on merits. There cannot be any dispute regarding the ratio of the judgment on which reliance is placed by the learned counsel appearing on behalf of the respondent No.1. In my view, however, taking into consideration the facts of this case, the delay caused in filing the written statement ought to have been condoned by the trial Court, particularly when the written-statement was itself affirmed on 14-8-2009. Hence, in this view of the matter, the impugned order passed by the trial Court is set aside. The delay caused in filing the written-statement is condoned. WP. 2103-11 - 7 - Writ Petition is, therefore, allowed and judgment and order passed by the trial Court dated 5th August, 2010 is quashed and set aside. The order passed by the revisional Court need not be set aside since the revisional Court has held that the revision application is not maintainable. Hearing of the suit in the trial Court is expedited, in any case case within a period of six months. . Writ Petition is disposed of in the aforesaid terms. [ V. M. KANADE J.]