1 wp8138-10.sxw jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8138 OF 2010 Marjorie Augustine and another .. Petitioners Versus Dilip Jadavji Nathwani and another .. Respondents Ms. Snehal Gajare i/by Mr. K.K. Malpathak for the petitioners Mr. Dipesh U. Siroya for respondent no.1 CORAM: R. M. BORDE, J. DATED : 16th August, 2011 P. C. 1. Rule. Rule made returnable forthwith. 2. Heard finally with the counsel of the learned counsel appearing for the parties. 3. An application tendered by the defendant, requesting the court to set aside the order of ‘no written statement’ passed by the trial Court on 30th March, 2010 came to be rejected by the 6th Joint Civil Judge, Senior Division on 26th June, 2010 for the reasons that no particulars in respect of injuries caused as a result of the accident and the details in 2 wp8138-10.sxw that regard were mentioned in the application. The petitioner- original defendant tendered another application, giving all the details and making out a case for setting aside the order. 4. The subsequent application tendered at Exh. 21 was turned down by the trial court on the ground that the earlier application at Exh.18 containing similar prayer has been turned down. 5. The suit summons in the matter were received by the defendant on 18th December, 2009 and he caused appearance on 17th December, 2009. The matter was adjourned thereafter on two occasions and ultimately, on account of failure of the defendant to file written statement, the order was passed by the Trial Court on 18th March, 2010. 6. The defendant- petitioner herein, moved application at Exh.18 without any delay and giving reason in respect of occurrence of accident and sustaining injuries by him. Since the earlier application Exh.18 was rejected on the ground that the details in respect of the injuries sustained by him and occurrence of the accident were not given, he presented an another application Exh.21. The defendant has given all 3 wp8138-10.sxw details in that application. However, the trial Court rejected the said application also. 7. There is hardly a delay of few days in presenting the written statement and moving the court. There is no unreasonable delay in approaching the Court nor, on perusal of the sequence of events, it appears that the defendants are instrumental in prolonging the litigation. 8. The counsel appearing for the respondent-original plaintiff seeks leave to place reliance on the judgment of the Apex Court in the matter M/s R. N. Jadi & Brothers & others Vs. Subhashchandra, reported in CDJ 2007 SC 787. The Apex Court in paragraph Nos. 9, 13 and 14 of the judgment has observed as follows: “9. 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. 4 wp8138-10.sxw 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 met extraordinary situations in the ends of justice. 13. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedurl prescriptions are the handmaid and not the mistress, a lubricant not a resistant in the administration of justice. 14. It also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order VIII 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 through hey 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 the entire context in which the 5 wp8138-10.sxw provision came to be enacted, hold the same to be directory though worded in the negative form.” 9. Considering the law laid down by the Apex Court, I am of the considered view that in the instant matter, the discretion needs to be exercised in favour of the petitioner/defendant. 10. The defendant has given details as regards the lapse on his part to present written statement within the time frame provided by statute. The explanation tendered by the defendant appears to be plausible and reasonable. Considering the facts and circumstances of the case, the order passed by the trial court needs to be quashed and and set aside and same is accordingly quashed and set aside. 11. The Rule is made absolute in terms of prayer clause (a). 12. In the facts and circumstances of the case, there shall be no order as to costs. ( R. M. BORDE, J.)