1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 699 OF 2010 1. Jose Fernandes Son of late Sebastiao Fernandes 2. Lourdin Fernandes Wife of Jose Fernandes H.No.not known Duelmol Sirvoi, Quepem, Goa. .. Petitioner. Versus 1. Shivanand V. Salgaonkar s/o. Late V.M. Salgaonkar and his wife; 2. Ranjana S. Salgaonkar 3. Dattaraj V. Salgaonkar s/o. Late V. M. Salgaonkar and his wife 4. Dipti D. Salgaonkar All major in age Indian nationals and residing at Hira Vihar H.No.278, Airport Road, Chicalim, Mormugao-Goa. 5. Sebastiao Fernandes Since deceased Through his legal representatives namely 6. Santan Fernandes s/o. Late Sebastiao Fernandes 7. Clara Fernandes wife of Santana Fernandes 8. Constancio Fernandes s/o. Sebastiao Fernandes 2 9. Filopmena Fernandes w/o. Constancio Fernandes all major of age and H.No.not known Duelmol Sirvoi, Quepem, Goa. 10. Flamina D'Souza Daughter of Sebstiao Fernandes 11. Carlito D'Souza husband of Flamina Fernandes All major of age and Both r/o. H.No. not known Igramoll, Quepem- Goa. .. Respondents Mr. C. A. Coutinho, Advocate for the petitioners. Mr. A. D. Bhobe, Advocate for respondent nos.1 to 4. None for the other respondents, though served. Coram :- A. P. Lavande, J. Date : - 1 st July, 2011. ORLA JUDGMENT : Heard learned Counsel for the parties. 2. Rule. Mr. Bhobe, learned Counsel waives notices on behalf of respondent nos.1 to 4. By consent of the learned Counsel for the parties, heard forthwith. 3. By this petition under Article 227 of the Constitution of India, the petitioners who are defendant nos.1 3 and 2 in Regular Civil Suit no.137/2010/A pending before Civil Judge, Senior Division, Quepem take exception to the order dated 5th August, 2010 by which the application dated 7th November, 2009 filed by the petitioners/ defendant nos.1 and 2 seeking extension of time for filing written statement, has been dismissed. 4. Briefly, the facts relevant for the disposal of the present writ petition are as under : Respondent nos.1 to 4 herein filed the above mentioned suit seeking reliefs of declaration and injunction against the petitioners and respondent nos.5 to 11. Defendant nos.1 and 2 were served by affixation on 19th June, 2009 and the suit was posted on 29th June, 2009. None appeared on behalf of defendant nos.1 and 2 on that date. However, the trial Court gave opportunity to these defendants to appear on the next date. On the next date, i.e. on 13th July, 2009, none appeared on behalf of defendant nos.1 and 2, yet the trial Court gave an opportunity to these defendants to appear and file written statement and the matter was adjourned on 5th August, 2009. On 5th August, 2009, Advocate S. Gaonkar appeared and filed Vakalatnama on behalf of defendant nos.1 and 2. On that date, the trial 4 Court ordered that the written statement be filed within a period of limitation with copy to the other side. Since defendant nos.1 and 2 were served by affixation on 19th June, 2009, the period of 90 days for filing the written statement was to expire on 17th September, 2009. 5. On the next date i.e. on 23rd September, 2009 Advocate Gaonkar appearing on behalf of defendant nos.1 and 2 sought time and the matter was adjourned to 28th October, 2009. On 28th October, 2009, the Judge was on leave and as such, the matter was adjourned to 7th November, 2009 on which date the application seeking extension of time to file written statement was filed which was opposed on behalf of the plaintiffs. By the impugned order, the trial Court dismissed the application primarily on the ground that no case was made out by defendant nos.1 and 2 to file the written statement beyond the period of 90 days. The trial Judge placed reliance upon the judgment of the Apex Court in the case of Kailas Versus Nanku and others; AIR 2005 SCC 2411. 6. Mr. Coutinho, learned Counsel for the petitioners submitted that since the provisions under Order VIII, Rule 1 of C.P.C. are directory as has been held by the Apex Court in 5 a catena of decisions and considering the fact that on 23rd September, 2009 the trial Court itself has granted time to file written statement and since on 28th October, 2009 the Judge was on leave, the application filed on 7th November, 2009 seeking extension of time ought to have been allowed by the trial Court. Learned Counsel further submitted that the record discloses that a copy of the written statement which was verified on 24th September, 2009 was given to Advocate F. Bangui appearing for the plaintiffs on 30th September, 2009 and as such, the mere fact that written statement was not filed on 28th October, 2009, which was the date given for filing the written statement, on account of Judge being on leave, the trial Court has clearly erred in not condoning the delay in filing the written statement which is not substantial one. Learned Counsel further submitted that serious prejudice would be caused to the petitioners in the event they are not permitted to file the written statement since the suit is for declaration and injunction. In support of his submissions, Mr. Coutinho, placed reliance upon the following judgments : (i) R. N. Jadi and Brothers and others; Vs. Subhashchandra; (2007)6 SCC 420 (ii) Shaikh Salim Haji Abdul Khayumsab Vs. Kumar and Ors.; 2006(1) All M R 132. 6 (iii) Zolba Vs. Keshao andothers;(2008)11 SCC 769. 7. Per contra, Mr. Bhobe, learned Counsel for respondent nos.1 to 4 submitted that the application filed by the petitioners seeking extension of time lacks bonafides and as such, the trial Court has correctly exercised its discretion in refusing to extend the time and condoning the delay in filing the written statement. According to the learned Counsel the conduct of the petitioners does not entitle them any discretionary relief in their favour and in case delay in filing the written statement is condoned, serious prejudice would be caused to respondent nos.1 to 4. Mr. Bhobe placed reliance upon the judgment in the case of Kailash Vs.Nanku and others; AIR 2005 SC 2411 and Balwant Singh (Dead) Vs. Jagdish Singh and Ors.; 2010(6) All MR 480 (SC). 8. I have considered the rival submissions, perused the record and the judgments relied upon. 9. In order to appreciate the rival contentions in the light of the facts stated above, it would be appropriate to reproduce the roznamas dated 5th August, 2009, 23rd September, 2009 and 28th October, 2009 which read thus : 7 05/08/09 Called out today before the Court Adv. Shri F. Bhangi present on behalf of the plaintiffs. D6 Adv. Shri S. Gaonkar present for deft. no.1 and 2 and files Wakaltanama on behalf of deft. 1 & 2 Order:File. C-7 Memo of address of deft.1 and 2 filed. Order file. None present on behalf of the deft. no.3 to 8. W.S. to be filed within period of limitation with copy to O/side posted for W.S. On 23.9.2009.- 10.00 a.m. CJSD, Quepem. 23/9/09 Called out today before the Court. Adv. Shri F. Bhangi present on behalf of the plaintiffs. Adv. Shri S. Gaonkar present on behalf of deft. 1 & 2 orally seeks time to file W.S. W.S. To be filed within period of limitation. None present for deft 3 to 8. Adj. For W.S. On 28.10.09 – 2.30p.m. CJSD, Quepem. 28/10/09 Called out today. Adv. V. Bhondre holding for Adv. Shri F. Bhangui present for plfts. Adv. Sudesh Gaonkar present on behalf of deft. no.1 & 2. 8 Deft. No. 3 to 8 duly served absent. As P. Judge is on earned leave matter Adj. for no W.S. hearing on 7.11.2009 –2.30p.m Head Clerk By order of the Court. 10. Perusal of the above roznamas discloses that although the period of 90 days for filing the written statement had expired on 17th September, 2009, the trial Court granted time to file written statement till 28th October, 2009, although it was stated therein that the written statement was to be filed within a period of limitation. Admittedly on 28th October, 2009 the Judge was on leave. The record further discloses that a copy of the written statement which was verified on 24th September, 2009 was served on the Advocate appearing on behalf of the plaintiffs on 30th September,2009. Indisputably, defendant nos.1 and 2 sought to place on record the written statement along with an application dated 7th November, 2009. 11. At this stage, I deem it appropriate to consider the judgments relied upon by both the sides. In the case of Subhashchandra (supra), 3 Judge Bench of the Apex Court has held that normal rule is that the 9 written statement must be filed within 30 days and any extension beyond 30 days must be granted on clear satisfaction of the justification for granting such extension. The Apex Court observed that the procedural law should not be ordinarily construed as mandatory or the same is always subservient to and is in aid to justice by placing reliance upon the judgment in the case of Shreenath and others Vs. Rajesh; (1998)4 SCC 543. In the case of Shaikh Khayumsab (supra), the Apex Court has held that the provision under Order VIII, Rule 1 of C.P.C. though worded negatively, can be construed as directory keeping in view the context in which it came to be enacted. In the case of Zolba (supra), Two Judge Bench of the Apex Court held that the proviso to Order VIII, Rule 1 of C.P.C. is not mandatory in nature and if exceptional circumstances are made out, the Court can permit the party to file written statement. The Apex Court further held that in an adversarial system, no parties are ordinarily be denied the opportunity of participating in the process of justice dispensation. In the said case, delay of 35 days in filing the written statement which was on the basis of advice given by the advocate for the defendant that the written statement can be filed after an application for injunction was decided by 10 the District Court. 12. In the case of Balwant Singh (supra) relied upon by Mr. Bhobe, the Apex Court while dealing with the term 'sufficient cause' under Section 5 of the Limitation Act, held that the purpose of introducing liberal construction is to introduce the concept of reasonableness; the law of limitation is a substantive law and has definite consequences on the rights and obligation of a party and these principles should be adhered to and applied depending on the facts and circumstances of the given case. The Apex Court held that once right has accrued in favour of the party as a result of failure of other party to explain delay by showing sufficient cause and its own conduct, it would be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default and inaction of that party. The Apex Court further observed that justice must be done to both the parties equally and if the averments made are not correct and lack bonafides, delay has not to be condoned. The Apex Court further held that liberal construction cannot be equated in doing injustice to other party. These observations were made in the context of a decision on an application under Order XXII, Rule 9 of C.P.C. filed for setting aside abatement. 11 13. Thus, it is evident that the written statement was verified on 24th September, 2009 and a copy of the same was served on the plaintiffs on 30th September, 2009. No doubt, defendant nos.1 and 2 could have filed the written statement on 24th September, 2009 itself and it was not necessary for the parties to wait to file the same in the open Court. Defendant nos.1 and 2 could also have filed the written statement on 28th October, 2009 on which date the defendants were given time by the trial Court to file the written statement. I fail to understand as to how the learned trial Judge after observing in the roznama dated 23rd September, 2009 that the written statement had to be filed within the period of limitation could have granted time to file the written statement till 23rd September, 2009 although the period of limitation has already expired on 17th September, 2009. Yet the fact remains that that the trial Court had granted time to defendant nos.1 and 2 to file the written statement on 28th October, 2009, on which date admittedly, the Judge was on leave. What emerges from the record is that the written statement duly verified by defendant nos.1 and 2 was ready on 24th September, 2009 and there was absolutely no reason as to why on that date the written statement was not filed. However, in this factual 12 background, it would be highly unjust to deprive defendant nos.1 and 2 of their right to file the written statement though circumscribed by Order VIII, Rule 1 of C.P.C. 12. As stated above, the Apex Court has held that the provisions of Order VIII, Rule 1 of C.P.C. are directory in nature, but at the same time, the defendants have to make out exceptional case for filing the written statement beyond 90 days. In the present case, the trial Court itself had granted time to defendant nos.1 and 2 to file written statement upto 28th October, 2009 though the trial Court in the absence of any exceptional circumstances could have granted time is debated. Be that as it may, the trial Court having given time to the defendants to file the written statement upto 28th October, 2009 and in the light of the fact that the written statement was duly verified on 24th September, 2009, I am of the considered opinion that it would be just and proper to permit defendant nos.1 and 2/ petitioners to file the written statement since serious prejudice would be caused to the petitioners in the event they are not permitted to file the written statement to contest the claim of the plaintiffs in the suit for declaration and permanent injunction. However, having regard to the conduct of defendant nos.1 and 2/ petitioners, it would be 13 just and proper to impose heavy costs on the petitioners which are quantified at Rs.5,000/-. The petitioners shall deposit the costs in the trial Court within a period of three weeks from today. Liberty to respondent nos.1 to 4 to withdraw the costs after they are deposited. The trial Court shall take the written statement filed by defendant nos.1 and 2 on record subject to payment of costs within a period of three weeks. 13. Writ Petition stands disposed of. A. P. LAVANDE, J. SMA