kvm 1 app329_11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 329 OF 2011 IN NOTICE OF MOTION NO. 978 OF 2011 IN SUIT NO. 1570 OF 1983 WITH NOTICE OF MOTION NO. 1773 OF 2011 1. Bitesh Hanumantrao Sagar ) (Deleted) ) 1(a) Smt. Shailaja Bitesh Sagar ) 1(b) Mrs.Shradha Atwani ) 1(c) Miss Hem Bitesh Sagar ) All of Mumbai, Indian Inhabitants, All ) Residing at 4/119, Jawahar Nagar, ) Opposite to Jawahar Nagar Post Office, ) Goregaon (West), Mumbai – 400 062) being the only heirs and legal represen- ) tatives of deceased Bitesh Hanumantrao ) Sagar who was carrying on business in ) the name and style of Bitesh Engineering) Trading and Commercial Management ) as the Sole Proprietor thereof. ) ..... Appellants [ Org. Defendant No.1(a) 1(b) and 1(f).] VERSUS 1(A) Virgina Anthony Misquitta ) (B) Manuel Anthony Misquitta ) (C) Royce Anthony Misquitta ) (D) Roger Anthony Misquitta ) (E) Ronnie Aanthony Misquitta ) (F)(i) Mrs. Virgina Misquitta ) (F)(ii)Mrs. Anita Diana Fernandes ) (F)(iii)Saby Fernandes alias Agnelo Mario ) Fernandes, All of Mumbai Indian Inhabitants) residing at 67, Misquitta House, Old Police ) Station Road, Vile Parle (West), Mumbai ) kvm 2 app329_11 56 As the Executors/Trustees of Late ) Anthony Misquitta ) 2. Gerald Michael Misquitta And ) Mrs. Melinda Eustace D’souza ) Both Indian Christian Inhabitant, having ) their address at 72/AA, Misquitta House, ) Old Police Station Road, Vile Parle (West), ) Mumbai 400 056 as the Executors/Trustees ) of the Original Plaintiff No.2. ) 2A. Mrs.Nancy Philip Misquitta ) 2B. Ms.Louella Philip Misquitta ) 2C. Ms.Rubina Philip Misquitta ) 2D. Ms.Rovina Philip Misquitta ) 2E. Mr.Clive Philip Misquitta ) Nos. 19 to 23 all of Mumbai Indian ) Inhabitants, residing at 72/AA, Misquitta ) House, Old Police Station Road, Vile Parle ) (West), Mumbai 400 056. ) 2F. Mrs.Regina Mark Texcira of Mumbai ) Indian Christian Inhabitants residing at ) 103, Palikan Apartments, Yari Road, Versova) Mumbai 400 061 ) 3. John Dominic Misquitta ) 4. Nelson Dominic Misquitta ) Both of Mumbai Indian Inhabitants ) residing at 67B and 72-AA, Misquitta House) Old Police Station Road, Vile Parle (West) ) Mumbai 400 056 ) 8. Chimanlal Nathalal (Deleted) ) 8(a) Rasiklal Chimanlal Shah of Mumbai ) Indian Inhabitant, residing at Block No.9, ) 4th Floor, Adarsh Building, Walkeshwar, ) Mumbai 400 006 ) 8(b) Ramanlal Chimanlal Shah of Mumbai) kvm 3 app329_11 Indian Inhabitant, Having his address at ) Block-3, 1st Floor, Adarsh Building, ) Walkeshwar, Mumbai 400 006 ) 8(c) Jayant Chimanlal Shah of Mumbai ) Indian Inhabitant residing at Block No. 505 ) Bhairav Darshan 882, J.B.Marg, Elphinstone) Road (West), Mumbai 400 036 ) 8(d) Arun Chimanlal Shah of Mumbai ) Indian Inhabitant residing at Block No. 2, ) 10th Floor, C-Wing, Matru Ashish, Nepeansea) Road , Mumbai 400 036 ) 8(e) Indravadan Chimanlal Shah of Mumbai) Indian Inhabitant residing at 221, 22nd Floor) Rushabh Apartment, Dr. Prakash Street, ) Prathna Samaj, Mumbai 400 006 ) 8(f) Datta Suman Shah of Mumbai ) Indian Inhabitant having his address at ) Block Nos. 11 and 12, 5th Floor, Adarsh ) Building, Walkeshwar Road, Mumbai 400 006) 8(g) Parin Suman Shah of Mumbai ) Indian Inhabitant having his address at ) Block Nos. 11 and 12, 5th Floor, Adarsh ) Building, Walkeshwar Road, Mumbai 400 006) 8(h) Shail Suman Shah of Mumbai ) Indian Inhabitant having his address at ) Block Nos. 11 and 12, 5th Floor, Adarsh ) Building, Walkeshwar Road, Mumbai 400 006) 9. Indravadan C.Shah Both of Bombay, ) Indian Inhabitant, carrying on business at ) and from C/o. R.Chimanlal & CO., 133, ) Cavel Street, 202, Swadeshi Market, ) Bombay 400 002 ) kvm 4 app329_11 10. Shantaben Manubhai Patel of Bombay) Indian Inhabitant, residing at 2, Milan, ) Bapubhai Vashi Road, Vile Parle (W) ) Bombay 400 101 ) 11. Hiraben C.Shah (Deleted) ) 12. Chimanlal N.Shah (Deleted) ) Both of Bombay, Indian Inhabitant, residing) at Flat No.9, 4th Floor, 94, Adarsh Building ) Walkeshwar Road, Opp.White Road, ) Mumbai 400 085 ) 13. Meena M.Thakkar, of Bombay Indian ) Inhabitant, residing at “Parul”, Flat No.4, ) Maneklal Mehta Estate, Bombay 400 085 ) 14. Asha Bhagwandas Patel of Bombay ) Indian Inhabitant residing at A6-Shiv Sagar) Ist Floor, Shivaji Park, Road No.5, Mahim, ) Bombay – 400 016 ) 15. Madhukar M.Thakkar of Bombay ) Indian Inhabitant residing at “Parul”, ) Flat No.4, Maneklal Mehta Estate, ) Bombay – 400 086 ) 16. Narendra V. Malbari of Bombay ) Indian Inhabitant residing at First Floor, ) Block No.29, “Sea Castle”, Chowpatty Sea ) Face, Bombay – 400 007 ) 17. Narendra Valji Pathak (Deleted) ) 17(a) Vijay Valji Pathak of Mumbai, ) Indian Inhabitant, Having his address at ) 4/D, Champa Vihar, M.G.Road, Kandivli, ) Mumbai 400 067 ) kvm 5 app329_11 17(b) Nayana N.Pathak of Mumbai, ) Indian Inhabitant, Having his address at ) 4/D, Champa Vihar, M.G.Road, Kandivli, ) Mumbai 400 067 ) 17(c) Mrs. Jinal Oza of Mumbai, ) Indian Inhabitant, residing at 1104, Adarsh ) Tower, Off. Marve Road, Adarsh Dugdhalaya) Complex, Malad(West), Mumbai 400 064 ) 18 Niranjan V. Pathak Both of Bombay , ) Indian Inhabitant, residing at 28, Bhaskar ) Lane, 2nd Floor, Bhuleshwar Lane, 2nd Floor, ) Bhuleshwar, Bombay 400 002 ) 19 Ashadevi Ramkrishna Yadav of Bombay) Indian Inhabitant, residing at Ramkrishna ) Niwas, Mohili Village, Sakinaka, ) Bombay 400 072 ) 20 Jayesh Jayantilal Shah of Bombay ) Indian Inhabitant, residing at “Hom”, ) Block No.3, Plot No.1, Road No.5, Suvarn ) Nagar Society, J.V.D.Vile Parle (W), ) Mumbai – 400 056. ) 21 Ushakant H.Mehta (Deleted)of Bombay) Indian Inhabitant, carrying on business at ) C/o. Group Builders, 22, Apollo Street, ) 2nd Floor and (Maz), Fort, Bombay 400 023 ) 21A Kishori Ushakant Mehta of Mumbai ) Indian Inhabitant, residing at 701D, Veena ) Sargam, Mahavir Nagar, Dahanukar Wadi, ) Kandivali (W), Mumbai - 400 067 ) 21B Deepal Ushakant Mehta of Mumbai ) Indian Inhabitant, having her address at ) kvm 6 app329_11 104-D, Veena Sargam, Mahavir Nagar, ) Dahanukar Wadi, Kandivali (W), ) Mumbai - 400 067 ) 21C Dhaval Ushakant Mehta of Mumbai ) Indian Inhabitant, residing at 204, ) Sundaram, Vasant Complex, Mahavir Nagar) Extension, Kandivali (W), Mumbai - 400 067) 22 Asha Sharad Shah and ) 23 Kiran Satish Shah Both of Mumbai ) Indian Inhabitants, residing at “Hom”, ) Block No.3, Plot No.1, Road No.5, Suvarn ) Nagar Society, Juhu Scheme, Vile Parle ) (West), Mumbai - 400 056 ) 24 Ishwar P. Mehta and ) 25 Madhuriben Ishwarbhai Mehta both ) of Mumbai Indian Inhabitants, Having his ) address at C/o. Ishwar And Co., 212, Sant ) Tukaram Road, Bombay - 400 009 ) 26 Kishor Ushakant Mehta of Mumbai ) Inhabitant, Residing at 18/152, Unnat ) Nagar, II, M.G.Road, Goregaon (West) ) Bombay – 400 062 ) 27 Navinchandra Motichand Shah ) (Deleted) and ) 27(a) Dayavanti Navinchandra Shah of ) Mumbai, Indian Inhabitants, residing at ) 31, Peddar Road, 12, Vikas, 1st Floor, ) Mumbai - 400 026 ) 27(b) Madhukant N.Shah of ) Mumbai, Indian Inhabitant ) kvm 7 app329_11 27(c) Prakash N.Shah of Mumbai, ) Indian Inhabitant ) 27(d) Sanjay N.Shah of Mumbai ) Indian Inhabitant ) 27(e) Bharti Doshi of Mumbai ) Indian Inhabitant ) 28 Dayavanti N.Shah both of Bombay ) Indian Inhabitant, Residing at 31, Peddar ) Road, 12, Vikas, First Floor, Bombay 400 026) 30 Karuna Chandrakant of Bombay, ) Indian Inhabitant, Residing at 1/17, Surya ) Kiron, Pangully, Hughes Road, ) Bombay 400 036 ) 32 Dilip M. Mehta (Deleted) ) of Bombay, Indian Inhabitant, Residing ) at Mangla Bhavan, 3rd Floor, Dr.Deshmukh ) Lane, V.P. Road, Bombay 400 004 ) 32(a) Vasanti Dilip Mehta of Mumbai, ) Indian Inhabitant, Having her address at ) 904, Sky High Tower, Shankar Lane Extension) Orlem, Malad (W), Mumbai 400 063 ) 32(b) Mayank Dilip Mehta of Mumbai ) Indian Inhabitant, Residing at 904, Skyhigh) Tower, Shankar Lane (Ext.) Orlem, ) Malad (W), Mumbai 400 064 ) 32(c) Bhakti Pratik Gandhi of Mumbai ) Indian Inhabitant, Residing at 202, ) Ganpati Apartment, L.T.Road, Borivali ) kvm 8 app329_11 (West), Mumbai 400 092 ) 33. Virendra Mafatlal Shah, and ) 34 Parendra M. Shah both of Bombay ) Indian Inhabitants, residing at Vidharbha ) Co-operative Housing Society Limited, ) 93, C.V.P.Road, Vile Parle (West), Mumbai ) 400 056 ) 35 Mr.Chaturbhuj S.Chawda of Bombay ) Indian Inhabitants, Residing at 27, Laborhum) Road, Datt Niwas, Gamdevi, Bombay ) 400 007 ) 36 Mafatlal S.Shah and ) 37 Karuna S.Shah, both of Bombay ) Indian Inhabitants, residing at ) Mangalam Building, 10, V.P.Road, ) Vile Parle (West), Mumbai 400 056 ) 38 Kishorekumar Vadilal Shah, and ) 39 Aruna K.Shah of Bombay Indian ) Inhabitant, residing at 303, Bharat ) Apartments, C.D.Barfiwala Marg, Andheri ) (W), Bombay 400 058 ) 40 Jayantilal P.Sanghvi (Deleted) of ) Bombay, Indian Inhabitant, Residing at ) 251, Kamdar Chamber, B-3, Ist Floor, ) Sion (East), Bombay – 400 022 ) 40(a) Pushpaben Jayantilal Sanghvi ) of Mumbai, Indian Inhabitant having her ) address at 1st Floor, 226B-9, Ram Niwas, ) Sion (East), Bombay – 400 022 ) 40(b) Dilip Jayantilal Sanghvi of Mumbai ) Indian Inhabitant residing at 226/B, 9, Ram) kvm 9 app329_11 Niwas Co.op.Hsg.Society Limited, Tamil ) Sangam Marg, Sion (East), Mumbai 400 022) 40(c) Maltiben Hohitkumar Parekh of ) Mumbai Indian Inhabitant residing at 66/9,) Padmalaya, Sion (East), Mumbai 400 022 ) 40(d) Bhartiben Rameshchandran Shah of ) Mumbai Indian Inhabitant residing at A/3, ) Gr.Floor, Jai Dena Apartment, Sodawala Lane) Govindnagar, Borivali (West), Mumbai 92 ) 40(e) Dakshaben Yogeshbhai Shah of ) Mumbai Indian Inhabitant residing at ) Flat No.14, 4th Floor, 141, Noman Manzil, ) Wadia Street, Tardeo, Mumbai 400 034 ) 41 Mita D. Sanghvi of Bombay Indian ) Inhabitant, residing at 251/B3, Kamdar ) Chambers, Sion Koliwada, Bombay 400 022) 42 Mulraj P. Thakkar of Mumbai Indian ) Inhabitant residing at Parul, Flat No.4, ) Maneklal Mehta Estate, Ghatkopar (W), ) Mumbai 400 086 ) 43 Dr. Lalbhai Z.Mehtal, of Bombay Indian) Inhabitant residing at Shroff Building, Ground) Floor, Gokhale Road (South), Bombay 400 028) 44 Rameshchandra C.Shah of Bombay ) Indian Inhabitant, residing at Block No.D/8,) First Floor, ‘Jay Bhavani’ Apartment, ) Borivli (West), Bombay 400 092 ) 45 Dhirajmani Rasikalal Shah, and ) 46 Ashwin Rasiklal Shah, both of ) kvm 10 app329_11 Bombay Indian Inhabitants, C/o. Mansukhlal) Shah, Marine Drive, 5th Floor, Flat No.11, ) “Shiv Prasad”, Bombay – 400 002 ) 47 Mahesh Ambalal Patel, of Bombay ) Indian Inhabitant, residing at 115, Navyug ) Nagar, Project Hill, Tardeo, Bombay ) 400 084 ) 48 Manaswaini Chhotalal Shah; and ) 49 Daksha Shailesh Merchant, both of ) Bombay, Indian Inhabitants, Residing at ) 9-10, Sapana Society, Bombay 400 086 ) 50 Anupama J.Mehta, of Bombay ) Indian Inhabitant, residing at 344, ) Shreeniwas Building, Sion (East), Bombay ) 400 022 ) 51 Chandrika G.Shah of Bombay, Indian ) Inhabitant residing at 505, Shivthirth No.2 ) 4B, D.Road, Bombay – 26 ) 52 Kiran Ambalal Patel of Bombay, Indian) Inhabitant residing at 115, Navyug Nagar, ) Forjett Hill, Opp. Bhatia Hospital, ) Bombay – 400 036 ) 53 Surajben M. Shah of Bombay, Indian ) Inhabitant residing at 505, New Shivthirth ) Building No.2, 4 Bhulabhai Desai Road, ) Haji Ali, Bombay – 400 026 ) 53(a) Tushar G.Shah of Mumbai, Indian ) Inhabitant having her address at 204, ) Doctor Centre, 135, August Kranti Marg, ) Mumbai – 400 036 ) kvm 11 app329_11 53(b) Tejash Shah of Mumbai, Indian ) Inhabitant having her address at 505, ) Shiv Tirth No.24, Bhulabhai Desai Road, ) Mumbai – 400 026 ) ..... Respondents Mr.P.K.Dhakephalkar, Senior Advocate with Mr.Swanand Ganoo, i/b. M.A.Narvekar for the Appellants. Mr.Joaquim Reis, i/b. M/s.Markand Gandhi & Co. for Respondent Nos. 1 to 4. Mr.S.M.Shettigar for Respondent Nos. 8 to 28, 30, 32 to 53. CORAM : S.A. BOBDE & R.D. DHANUKA, JJ. RESERVED ON : 8th FEBRUARY, 2012 PRONOUNCED ON : 21st MARCH, 2012. JUDGMENT (PER R.D.DHANUKA, J.) : Admitted. Counsel appearing for Respondent Nos. 1 to 4, 8 to 28, 30, 32 to 53 waives service. Appellants have already deleted Respondent Nos. 5(a) to 5(c), 6(A) to 6(F), 7, 29, 31 and 54 to 65 from the title of the Appeal Memo. By consent, heard finally. 2. This is an Appeal against the dismissal of Notice of Motion taken out by the Appellants [Original Defendant Nos. 1(A), 1(B) and (1F)] which was for condonation of delay in taking out Notice of Motion and for taking the Written Statements on their behalf on the record of the suit and for allowing the kvm 12 app329_11 Appellants to file their Written Statement in Suit NO. 1570 of 1983 which has resulted in the suit being proceeded without Written Statement against the Appellants [Appellants - Defendant Nos. 1(A), 1(B) and (1F)]. Parties described in cause title of the plaint are described in this appeal in the later part of this Judgment. 3. Defendant Nos. 1(A) to (1F) are legal heirs of one Mr.Bitesh Hanumantrao Sagar, original Defendant No.1. Defendant Nos. 1(A) to 1(F) were brought on record after demise of Defendant No.1 as his legal heirs sometimes in the year 2002. Respondent Nos. 1(A) to (1F) in this Appeal are Original Plaintiffs and have filed a suit for declaration that agreement dated 5th April 1974 as modified by the Agreement dated 11th November, 1978 and the agreement incorporated in the Consent Terms dated 28th January, 1981 and two Powers of Attorney on 13th November, 1978 have been duly and validly terminated. It is the case of the Plaintiffs that they are the lessor of the of the plot of land which was leased out to Defendant No.1 for the purpose of development. Some of the Defendants in the said suit have already filed Written Statements on 24th January, 2007. The aforesaid suit appeared on the Board of S.J.Vazifdar J., on 13th July, 2007 under the caption “For want of Written Statement”. The matter appeared on Board on 31st July, 2007 and 14th September, 2007 under the caption “Undefended suits for ex-parte decree”. The matter was thereafter shown on Board for hearing and final kvm 13 app329_11 disposal on 15th October, 2007 and 31st March, 2008. On 7th April, 2008, S.C.Dharmadhikari, J. framed issues in the aforesaid suit. None appeared for Defendant Nos. 1(A) to 1(F). The Plaintiffs through their Learned Counsel prayed that a decree be passed against Defendant Nos. 1(A) to 1(F) for want of Written Statement by invoking the provisions of Order 8 Rule 5 Sub-Rule 2 read with Order 8 Rule 10 of the Code of Civil Procedure. From the perusal of the Order dated 7th April, 2008 it is clear that no such decree came to be passed as prayed by the Plaintiffs on 7th April, 2008 or thereafter though the matter appeared on Board from time-to-time. 4. Defendant Nos. 1(A), 1(B) and (1F) took out Notice of Motion bearing No. 978 of 2011 on 28th March, 2011 praying for condonation of delay if any in taking out Notice of Motion and for taking the Written Statement on their behalf on the record of the suit. Plaintiffs filed an affidavit-in-reply to the said Notice of Motion opposing the reliefs as prayed by the Defendant Nos. 1(A), 1(B) and (1F). The Learned Single Judge by an Order dated 21st April, 2011 dismissed the said Notice of Motion holding that initially the allegation of the Defendant Nos. 4 to 49 was that the Plaintiff and Defendant No.1 were in collusion. It was observed that the position seems to have changed now and that may be the reason why the Applicants who have been brought on record in the year 2002 have filed the present Notice of Motion in the year 2011 for taking their Written Statement on kvm 14 app329_11 record. It is held that no case for grant of reliefs sought in the Notice of Motion is made out. The Learned Single Judge held that the instant case could be governed by the legal position prevailing prior to the amendment in the year 2002 in the Code of Civil Procedure, 1908 which is more rigorous than the one which is introduced by the amendment. It is further held that assuming that the Applicants who are the heirs of the Original Defendant No.1 are brought on record in the year 2002 that the application would be governed by the amended provisions of the Code of Civil Procedure. The Learned Single Judge distinguished some of the Judgments cited by the Defendant Nos. 1(A), 1(B) and 1(F) in support of their plea that the delay in taking Notice of Motion be condone and their Written Statement be taken on record. 5. The Learned Senior Advocate Shri P.K.Dhakephalkar appearing for the Defendant Nos. 1(A), 1(B) and (1F) contended that the said Defendants were under bonafide belief and were under the impression that the Written Statement on behalf of Original Defendant No.1 had been already filed in the suit. The said Defendants came to know in the second week of January 2011 when the Appeal filed by the flat purchasers came up for hearing and son of Defendant No.1 enquired with the lawyer to furnish copy of the Written Statement. The Learned Counsel contended that at that stage the Learned Advocate representing his client informed that the Written Statement was not filed. Defendant No.1 thereafter kvm 15 app329_11 immediately contacted his new advocate Mr.Narvekar and instructed him to draft Written Statement on behalf of the Defendants as well as his heirs whose names were brought on record. The Learned Counsel pointed out that Defendant No.1 is a cancer patient and had been suffering from last several years and is required to take medical treatment regularly. The said Defendants were under bonafide belief that the necessary steps had been taken by the advocate appointed by late husband of Defendant No.1(A). The Learned Counsel contended that the Advocate now representing the Defendant Nos.1(A), 1(B) and (1F) has drafted the Written Statement and the same has been declared by them. Shri Dhakephalkar contended that these Defendants have substantial defence in the suit and therefore the Written Statement be taken on record. The Learned Counsel contended that delay in filing the Written Statement was not intentional. 6. Shri Dhekephalkar, the Learned Senior Counsel also contended that the provisions of Code of Civil Procedure referred by the Learned Single Judge were not applicable as Bombay High Court being a Chartered High Court was governed by the Bombay High Court (Original Side) Rules, 1980. The Learned Counsel contended that therefore reliance placed by the Learned Single Judge on such provisions while dismissing the Motion is contrary to the judgment of the Apex Court which has been followed by this Court in several matters. The Learned Counsel contended that for the reasons setout in the affidavit in support of the kvm 16 app329_11 Notice of Motion, the Court should take lenient view and Defendants be allowed to defend suit by filing written statement upon such terms and conditions as this Court may deem fit. The Learned Counsel appearing on behalf of Defendant Nos. 1(A), 1(B) and (1F) assured this court that if an opportunity to file Written Statement is granted, the said Defendants would co-operate with the Plaintiffs in disposal of the suit expeditiously and would not seek any adjournment unnecessarily. 7. The Learned Counsel Shri Dhakephalkar placed reliance on the Judgment of this Court in the case of Saga Department Stores Limited vs. Falak Home Developers Pvt. Limited reported in 2008 (6) Bom.C.R.59 and Judgment in the case of Mont Blanc Properties and Industries Ltd. vs. Mont Blanc Co-operative Housing Society Ltd. & Anr. reported in 2009(2) Bom.C.R.505. 8. Per contra, the Learned Advocate Shri Joaquim Reis appearing for the Plaintiffs strongly opposed this Appeal filed by the Defendant Nos. 1(A), 1(B) and (1F) on the ground that there is gross delay in filing the Written Statement as the Defendant No.1 himself during his lifetime though Writ of Summons was served on Defendant No.1 on 20th May, 1985, did not file Written Statement till his death. The Learned Counsel contended that the Chamber Summons for bringing the legal heirs of Original Defendant No.1 came to be made absolute on 16th February, kvm 17 app329_11 2002 to the knowledge of Defendant Nos. 1(A), 1(B) and (1F) and inspite thereof, no steps were taken by the Defendants to file any pleadings in the nature of Written Statement. The Learned Counsel further contended that the said parties in another suit bearing No.3091 of 2008 in which an application was made by the Plaintiffs and on such application, the plaint filed against them was rejected. The Plaintiffs had brought these facts to the notice of this court as far back as in the year 2010 that the 1st Defendant had not filed any Written Statement and therefore, suit should proceed ex-parte. The Plaintiffs disputed the averment of Defendant Nos. 1(A), 1(B) and (1F) that they came to know for the first time in the month of January, 2011 about non-filing of Written Statement by Original Defendant No.1. The Learned Counsel further contended that the issues have been already finalised as far back on 7th April, 2008 and therefore no liberty should be granted to Defendant Nos. 1(A), 1(B) and (1F) to file Written Statements at this stage. The Learned Counsel also placed reliance on the Judgement of the Apex Court in the case of Kailash vs. Nanhku and others reported in AIR 2005 Supreme Court 2441 and Judgment of Apex Court in case of Balwant Singh vs. Jagdish Singh and others reported in (2010) 8 Supreme Court Cases 685. In Rejoinder, the Learned Counsel Shri Dhakephalkar distinguished the Judgment of the Hon’ble Apex Court cited by Senior Counsel Shri Joaquim Reis. Having heard the Learned Counsel for the parties, we have given anxious consideration to the rival submissions. kvm 18 app329_11 9. In case of Kailash vs. Nanhku and others (supra), the Apex Court was dealing with the provisions of Representation of the People Act 53 of 1951, Order 8 Rule 1 of Code of Civil Procedure and also the rules framed by High Court governing the procedure of the trial before the Allahabad High Court, in exercise of powers conferred by Article 225 of the Constitution of India. After considering the Judgment of Apex Court in case of Iridium India Telecom Ltd. vs. Motorola Inc. AIR 2005 SC 514 : (2005) 1 JT (SC) 50 and Rules 5 and 12 framed by the Allahabad High Court in paragraphs 21 and 27 of the said Judgment, it is held as under :- 21. We are, therefore, of the opinion that, in view of Rules 5 and 12 framed under Article 225 for purposes of the Special Act, the High Court is not powerless to extend the time for filing the written statement simply because the time limit for filing the written statement within the allowance permitted by the Proviso to Order VIII Rule 1 of the CPC has come to an end. 27. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. kvm 19 app329_11 10. The Apex Court in the said Judgment also