1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5342 OF 2008 Sow. Sugranbai w/o Bhika Pimple and Anr ...Petitioners Versus Bhika s/o Kacharu Pimple and others ...Respondent ..... Shri. P.R. Katneshwarkar, Advocate for the petitioners Shri R.R. Imale, Advocate for respondent Nos. 1 to 4 Mr. M.L. Dharashive, AGP for respondent Nos 11 and 12. None appears for respondent Nos. 5 to 10 though served. ..... CORAM : S. S. SHINDE, J. DATE OF RESERVING THE ORDER : 21.07.2009 DATE OF PRONOUNCING THE ORDER : 23 .07.2009 P. C. :- 1 This petition is filed challenging the order passed below Exh.24 in R.C.S. No. 444 of 2006, by the learned C.J.S.D. Jalna on 9.7.2008. The petitioners are the original defendant Nos. 7 and 8 in R.C.S. No.444 of 2006. The said suit is filed by respondent Nos. 1 to 4 herein for perpetual injunction and declaration of ownership against the petitioners as well as other respondents. 2 Summons were issued and the same were served to the petitioners on 2 13.7.2007. The petitioners appeared before the Court, through their advocate on 21.7.2007. Initially they sought for time to file written statement of defence, who ultimately failed to file written statement within stipulated period of 30 days. It is the case of the petitioners, that no W.S. Order was not passed by the Court. 3 On 15.3.2008, the petitioners filed an application for acceptance of their written statement on the ground that in the meantime, brother of the petitioner No. 1 died on 21.1.2008 and wife of petitioner No.2 was suffering from Typhoid and fever and therefore, they could not file written statement within stipulated period. They prayed that written statement on their behalf be accepted by the court. The learned Civil Judge, Senior Division, Jalna decided the application below Exh.24 and rejected the same by order dated 9.7.2008. hence, this petition. 4. Learned counsel appearing for the petitioners submits that though sufficient cause was shown, the learned Judge, erroneously rejected the application and did not accept the written statement of the petitioners. The learned counsel further submits that though the written statement was supposed to be filed before 12.10.2007, wife of petitioner No.2 was seriously ill and suffering from typhoid, fever and jaundice. He further submits that brother of petitioner No.1 died on 21.1.2008. It is further submitted that medical certificates to that effect were submitted before lower court and prayed that it should be taken as exception 3 circumstance to condone the delay in filing written statement on behalf of the petitioners, the wife of petitioner No.2 was seriously ill and brother of petitioner No.1 was died. Learned counsel further submitted that provisions of Order VIII Rule 1 are not mandatory in nature and power of the court to take written statement on record, though filed beyond time as provided for, is not taken away. The nature of the provisions is procedural and not a part of substantive law. Learned counsel further submits that no inconvenience to the plaintiff can be caused as such original defendant Nos. 1 and 2 are dead. The plaintiff have filed application in order to set aside the abatement of defendant No.2 and for condonation of delay in bringing L.Rs. on record of defendant No.2 on 15.3.2008. It is further submitted that the plaintiff himself is responsible for delay in proceeding in the suit and therefore, the plaintiff could not have opposed the condonation of delay in filing written statement by the petitioners. The learned counsel placed reliance on the reported judgment of Supreme Court in the case of R.N. Jadi and others Vs. Subhashchandra reported in (2007) 6 SCC 420 and has submitted that the provisions of Order VIII Rule 1 are directory in nature and power of the court to condone the delay in filing written statement is not taken away by the said provisions. Therefore, learned counsel submits that the petition deserves to be allowed. Learned counsel invited my attention tot he grounds taken in the writ petition and annexures and submits that in the interest of justice, the impugned order may kindly be set aside. 4 5 Learned counsel appearing for the respondents submits that though the limitation for fling written statement expired on 11.10.2007, no application was filed for extension of time by the petitioners. It is further submitted that medical certificate of the wife of petitioner No.2 issued by Doctor, is for the period from 25.11.2007 to 15.1.2008. The said certificate does not disclose that the patient was admitted in the hospital and she was under treatment. Learned counsel further submits that the qualification of the concern Doctor, who has issued medical certificate is B.A.M.S. and not M.B.B.S. He further submits that there is delay of more than 215 days and there is no prayer in the application for condonation of delay and in absence of prayer for condonation of delay, the lower court has rightly rejected the application filed by the petitioners praying for taking written statement on record. According to the learned counsel for the respondents, reasons given by the lower court while rejecting application of the petitioner are in accordance with the law and more particularly order VIII Rule 1 of C.P.C. Therefore, learned counsel for respondents prayed that the petition be dismissed. In the alternative, learned counsel submits that in case this court is inclined to set aside the impugned order and direct the lower court to accept the written statement of the petitioners, in that case, the respondents may be compensated by a reasonable costs, since the matter was adjourned for 11 times by the lower court. 6 After hearing learned counsel appearing for the petitioners as well as 5 respondents and looking to the facts and circumstances of this case, I am inclined to allow this writ petition for the following reasons. On perusal of the impugned order passed by the learned C.J.S.D. Jalna it appears that the court has proceeded on the footing that accepting written statement of defence after 90 days is not permissible in view of Rule 1 of Order VIII of Code of Civil Procedure. It appears that the learned Civil Judge, Senior Division, Jalna understood the provisions are mandatory. The concern court has not properly appreciated the contention of the petitioners that wife of petitioner No.2 was seriously ill. The petitioner No.2 had produced on record medical certificate of illness of his wife. Even the court has recorded in its order that she was suffering from jaundice. The learned lower court has observed that it is not the case of the petitioners that wife of petitioner No.2 was seriously ill. In fact that is no basis for this findings recorded by the court. Throughout, the petitioners case is that the wife of petitioner No.2 is seriously ill and suffering from typhoid, fever and jaundice and to that effect medical certificate was produced on record before the lower court. In addition to that the petitioner No.1 has also produced on record the death certificate of his brother. In my considered view, these two grounds i.e. death of brother of petitioner No.1 on 21.1.2008 and the serious illness of wife of petitioner No.2, are exceptional circumstances. The Hon'ble Supreme Court had occasion to interpret Rule 1 of Order VIII 6 of Civil Procedure Code in the case of R.N. Jadi & Brothers (supra) and in para 15 has held as under:- “It is also to be noted that though the power of the court under the proviso appended to Rule 1 of Order 8 is circumscribed by the words ‘shall not be later than ninety days’ but the consequences flowing from non extension of time are not specifically provided for though they may be read by necessary implication. Merely, because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view of the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form.” On careful reading of the judgment of the Apex Court (cited supra), I find that the provisions of Rule 1 of Order VIII are not necessarily mandatory in nature and in exceptional circumstances, the court can permit the parties to file written statement though the period of 90 days is expired. 7 In the facts and circumstances of this case, as stated herein above, the medical certificate of wife of petitioner No.2 does indicate that she was suffering from serious disease. There is also death certificate placed on record which shows that brother of petitioner No.1 died on 21.1.2008. It is also pertinent to note that no prejudice would be caused to the respondents if the written statement is 7 filed by the petitioners, since the issues are yet to be framed by the concern court. The petitioners have also brought on record that even the original plaintiffs respondents herein are guilty of laches in filing application for bringing L.Rs. of respondent Nos.1 and 2 on record, the said application for bringing L.Rs. is filed by the original plaintiffs on 15.3.2008. 8 Taking over all view of the matter and in the facts and circumstances of the case, I find that delay in filing written statement is not intentional. Thus, the impugned order passed by the learned Civil Judge Senior Division, Jalna below Exh.24 in Regular Civil Suit No. 444 of 2006, denying opportunity to the petitioners herein for filing written statement, is not sustainable. 9 The learned counsel appearing for the respondents in the alternative has submitted that matter was adjourned from time to time in the lower court by granting time to the petitioners for filing written statement and therefore, the original plaintiffs should be compensated with costs. In my view, the alternate prayer of the respondents is reasonable. 10 For the aforesaid reasons, the impugned order dated 9.7.2008 passed by the learned Civil Judge, Senior Division, Jalna below Exh.24 in R.C.S. No.444 of 2006 is quashed and set aside. The petitioners can file their written statement within 15 days from the date of pronouncement of this order. The petitioners shall 8 pay costs of Rs.2000/- to respondent Nos. 1 to 4. The costs amount to be deposited with the written statement. Original plaintiffs are at liberty to withdraw the said amount. 11 Writ petition is allowed and disposed of. *****