1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.819 OF 2009. Shivshankar Nagnath Raiwade and another. .... PETITIONERS. VERSUS Trimbak Venkati Katale and others. .... RESPONDENTS. ... Shri M.S. Patil, Advocate for Petitioners. Shri P.S. Chavan, Advocate for Respondents. ... CORAM : S.S. SHINDE, J. DATE : 12th AUGUST, 2009. PER COURT: 1. This petition is filed challenging the order dated 18.10.2008 passed by the C.J.J.D., Renapur below Exh.28 in R.C.S. No.93 of 2003 (New No.49/2008) filed by the respondents. The present petitioners are original defendants in R.C.S. No.93/2003 (New No.49/2008). On 8.9.2004, the C.J.J.D., Renapur passed “No W.S.” order. 2. The petitioners – original defendants filed an application for setting aside the order dated 8.9.2004 passed by the C.J.J.D., Renapur 2 below Exh.28. The original plaintiffs filed reply to the said application below Exh.28. After hearing the parties, the C.J.J.D., Renpaur passed order below Exh.28 in R.C.S. No.93/2003 whereby the prayer of the petitioners for setting aside order of “no w.s.” is rejected. 3. Being aggrieved by the order dated 18.10.2004 thereby confirming the order dated 9.8.2004 the petitioners have filed this writ petition. 4. The learned Counsel for the petitioners submitted that the order of “No W.S.” was ex parte order without hearing the petitioners. It is further submitted that when the petitioners are in possession of the suit well and enjoying the same, “No W.S.” order will deprive the petitioners from justifying their claim. It is further submitted that in fact the notice of summons was not served on the petitioners / original defendants and without service of summons, ex parte order of “No W.S.” order came to be passed. It is further contended that the petitioners came to know about the filing of the suit in the trial Court when they saw the public notice issued in the Daily newspaper namely Punyanagari on 12.4.2008. It is further submitted that immediately the petitioners approached the lawyer and filed application (Exh.28) on 17.7.2008 for setting aside the ex parte order. The petitioners being the only members in the family and after demise of mother, the petitioners were not aware about the litigation pending before C.J.J.D., Renapur. Therefore, when petitioners came to 3 know about the the litigation through news item, they immediately approached to the lawyer to represent their cause before the trial Court. It is contended that the petitioners have specifically pointed out that because of the household liabilities, the petitioners could not approach the Court in time and in the interest of justice, “No W.S.” order is required to be set aside by directing the trial Court to accept the W.S. The learned Counsel for the petitioners invited my attention to Order 8 Rule 1 of the Code of Civil Procedure and submitted that the said provisions are not mandatory in nature and the same are directory as held by the Honourable Apex Court in reported judgment in the case of M/s R.N. Jadi and brothers and others vs. Subhashchandra [2007(9) Scale 202]. He further submitted that Order 8 Rule 1 of the Code is procedural rule and it is not part of the substantive law. It does not deal with the power of the Court and it intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the plaintiffs and petitioners approaching the Court for quick relief and also to the serious inconvenience of the Court faced with frequent prayers for adjournments. No party should ordinarily be denied the opportunity of participating in the process of justice dispensation. The learned Counsel therefore, would submit that the facts of this case warrants that the impugned order requires to be set aside by directing the Court below to accept the written statement. 4 The learned Counsel further invited my attention to paragraph 3 of the writ petition and submitted that the summons was not served on the petitioners and there was no notice of summons as contemplated under Order 5 Rule 17 of C.P.C. And for the first time the petitioners came to know about the pending litigation through paper publication and immediately the petitioners approached the lawyer for taking further steps and filing written statement. The learned Counsel, therefore, submitted that this writ petition deserves to be allowed. 5. The learned Counsel for the petitioners in support of his contention further invited my attention to the reported judgment of the Supreme Court in case of Ramesh Chand and another vs. Punjab National Bank and others [AIR 1990 SC 1147] and submitted that in that case though the conduct of the defendant was far from satisfactory and trying to delay the matter, even then the Court gave one final opportunity to the defendant for filing the written statement on certain conditions and the defendants therein were directed to deposit a sum of Rs.two lakhs within a specified time. Therefore, the learned Counsel prayed that the petition deserves to be allowed. 6. The learned Counsel for the respondents invited my attention tot he affidavit-in-reply filed on behalf of the respondents and submitted that on 24th March, 2003 the summons were issued to the defendants which were served on the original defendants no.1 and 4, who are the present 5 petitioners, on 30th June, 2003 and 1st July, 2003 respectively. Since the petitioners failed to appear in the suit, the Court was not left with any option but to pass the ex parte order below Exh.1 on 8.9.2004. The learned Counsel further submitted that for setting aside the order dated 8th September, 2004, the present petitioners had filed application on 17.7.2008 which was hopelessly time barred and said application is filed after four years and few months. The learned Counsel further submitted that no case was made out by the petitioners showing sufficient cause in the application for setting aside the earlier order and therefore, the Court has rightly rejected the application filed by the present petitioners. The learned Counsel further submitted that many contentions raised in the petitions are beyond pleadings of the original application and which needs no consideration by this Court since this Court is exercising jurisdiction under Article 227 of the Constitution of India. Therefore, on the basis of the affidavit-in-reply filed by respondents, the learned Counsel would contend that the petition deserves to be dismissed. 7. I have heard the learned Counsel for the petitioners and respondents at great length. I have carefully perused the pleadings in the petition, annexures thereto, the averments in the application below Exh. 28 and other documents on record. I have also carefully read the judgments cited before me and I am of the considered view that the fats of this case do not warrant any interference in the impugned order passed by the lower Court. 6 8. At the outset, it is necessary to mention that there is no dispute that the provisions of Order 8 Rule 1 of the Code of Civil Procedure are not mandatory in nature and the same are directory as held by the Honourable the Apex Court. What is important is that if the extraordinary circumstances exist or exceptional circumstances are shown then the Court can certainly exercise its power and can set aside “No W.S.” order. As the Supreme Court has held in number of reported judgments that in case of exceptional circumstances the Court is not barred from exercising powers and allowing parties to file written statement. The Apex Court in the case of Zolba vs. Keshao and others [2008(3) Bom.C.R. 1], has held that in exceptional cases if sufficient cause is shown for not filing written statement within stipulated time, the delay can be condoned by allowing parties to file written statement. Therefore, what follows from the judgments of the Apex Court on the subject is that the provisions of Order 8 Rule 1 of the C.P.C. Are not mandatory in nature but, those directory and, in exceptional circumstances, though the written statement is filed beyond 90 days as prescribed under Order 8 Rule 1 of C.P.C., the court is not powerless to condone the delay in filing written statement and allowing parties to file written statement. 9. Coming to the facts of the present case and more particularly, the contents of the application below Exh.28 filed by the petitioners for 7 setting aside “No W.S.” order except mentioning that due to household difficulties the defendants no.1 and 4 could not approach to the Advocate or to inform the other defendants and, therefore, they could not file written statement, in the said application, in all there are only three paragraphs with prayer. The relevant paragraphs 2 and 3 are reproduced herein below: “2] As the matter of fact, due to household liabilities, the Defendant No.01 & 04 could not approach to the Advocate or to inform other Defendants. There was no such intention of Defendant so as to cause any inconvenience in the proceeding. 3] However, the Defendant has appeared in the matter through the Advocate and W.S. Therefore, it is just to accept if and give an opportunity to the Defendant to defend the case.” 10. On careful perusal of paragraphs 2 and 3 of the said application, except mentioning that the petitioners, due to household liabilities, could not approach the Advocate, no other reasons are mentioned or no sufficient cause has been disclosed for not filing the written statement on service of the summons. The second contention of the Counsel for the petitioners that there was no service of summons in 2003 does not find place in the application 8 which was filed before the lower Court. In other words, the contention which is taken by the learned Counsel in paragraph 3 of the petition that there was no service of summons, was not taken in the application which has been adjudicated by the lower Court and lower Court has passed the impugned order which is subject matter of this petition. In absence any pleadings to that effect, I am not inclined to enter into that controversy in writ jurisdiction under Article 227 of the Constitution. The contents of the application for setting aside “No W.S.” order do not disclose sufficient cause, much less, exceptional circumstances warranting exercise of power by the Court to condone inordinate delay in filing the application for setting aside the “No W.S.” order. No doubt, the provisions of Order 8, Rule 1 of C.P.C. Are directory in nature and the Court can exercise powers in cases of extraordinary situation or in exceptional circumstances but, in the facts of this case, the lower Court was perfectly justified in rejecting the application filed by the petitioners herein which was hopelessly time barred. In the instant case, the impugned order is not only passed on the ground that beyond 90 days the Court cannot exercise powers but, the Court had taken exercise to see the contents of the application and has recorded that only by way of exception, the delay which is beyond 90 days, can be condoned. The learned Judge has referred to the judgments of this Court as well as Apex Court and after considering the fact situation in this case, has passed proper order. Therefore, no 9 interference is called for in the well reasoned order impugned in this petition. 11. So far the contention of the learned Counsel that by imposing heavy costs the petitioners may be allowed to file written statement is required to be rejected merely for the reason that the delay is inordinate and no sufficient cause has been disclosed in the original application which was filed before the lower Court. For all these reasons, this is not a fit case in which in interference is called for in the impugned order. Hence, the writ petition is dismissed. [ S.S. SHINDE, J ] PLK/# ...