1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6903 OF 2009 Shankar Tukaram Patil & Ors. .. Petitioners versus Shankar Dhondiram Gorule & Ors. .. Respondents Mr.Amit Shetye and Mr.Amit B. Borkar for the petitioners. Mr.Indrajeet Joshi for the respondents. CORAM : A.S.OKA, J. DATE : 1st February 2010. JUDGMENT: . Heard learned counsel appearing for the petitioners and learned counsel appearing for the respondents. Notice for final disposal was issued by this Court. The challenge in this writ petition under Article 227 of the Constitution of India is to the order dated 6th December 2008 by which the applications made by the petitioners at Exhibits 38, 44 and 46 have been rejected. The petitioners are the original plaintiffs and respondents are the defendants. The respondents filed a Counter-claim. It appears that there was no written statement filed by the petitioners to the said Counter-claim and therefore , an order of “No Say” was passed by the trial Court on the Counter-claim. Therefore, an application was made for setting aside the said order. Another application was made for taking on record the written statement to the Counter-claim which is described in the said application as a rejoinder. The trial Court declined to permit the petitioner to file written statement to the Counter-claim. 2 2. While passing the impugned order, the learned trial Judge relied upon Rule 1 of Order VIII of the Code of Civil Procedure, 1908 as amended with effect from 1st July 2002. The learned Judge observed that the written statement is not filed within the time prescribed by Rule 1 of Order VIII of the said Code. The learned Judge observed that Counter-claim was filed on 17th January 2007, and on 27th February 2008, an order was passed of “No Say”. The trial Court held that there was no explanation for delay. 3. The learned counsel appearing for the petitioners submitted that Rule 1 of Order VIII of the said Code will have no application as there is a specific provision which deals with a written statement to a Counter-claim. He, therefore, submitted that the Court had a discretion to allow written statement to the Counter-claim to be filed. 4. The learned counsel appearing for the respondents submitted that the Counter-claim is in the nature of a cross-suit and therefore, constraints of proviso to Rule 1 of Order VIII of the said Code will certainly apply and therefore, the learned Judge was justified in rejecting the said application. 5. I have given careful consideration to the submissions. Rule 1 of Order VIII of the said Code was substituted by Code of Civil Procedure (Amendment) Act, 2002 with effect from 1st July 2002. By the amendment, it was provided that a defendant shall file written statement within a period of thirty days from the date of service of summons to him. The proviso to Rule 1 added by amendment 3 provides that where the defendant fails to file written statement within the period of thirty days, he shall be allowed to do so on such other day, as may be specified by the Court, for the reasons to be recorded in writing, but which shall not be later than 90 days from the date of service of summons. Though the amended rule 1 of Order VIII of the said Code has been held to be directory, the Apex Court held that time of 90 days can be extended only by way of an exception for the reasons recorded. 6. Rule 6-A of Order VIII of the said Code deals with the Counter-claim filed by the defendant which reads thus: “6-A. Counter-claim by defendant.-(1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not: Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to the plaints.” Sub-rule 3 of Rule 6A of Order VIII of the said Code provides that a plaintiff shall 4 be at liberty to file a written statement in answer to the Counter-claim within such period as may be fixed by the Court. It is true that a Counter-claim is in the nature of a cross-suit. Sub-rule 3 of Rule 6A confers discretion on the trial Court to fix a period within which a written statement in answer to the Counter-claim can be filed. It must be noted that though the legislature has chosen to amend Rule 1 of Order VIII of the said Code in the year 2002, sub-rule 3 of Rule 6A has not been amended. This shows that the legislature never intended to apply constrains of the time limit prescribed for filing a written statement to a suit to the written statement to a Counter-claim . Therefore the discretion conferred on the Court by sub-rule 3 of Rule 6A to fix a time for filing written statement to a Counter-claim has been kept intact by the legislature. 7. Apart from the fact that Rule 1 of Order VIII of the said Code has been held to be directory, the rigour of the said Rule will not apply to a written statement by way of answer to a Counter-claim and the Court has a discretion to fix appropriate time within which such written statement can be filed. It is true that while exercising the discretion, the trial Court cannot altogether ignore the legislative intent which is reflected from the amendment to Rule 1 of Order VIII of the said Code of fixing an outer limit for filing of the written statement. Nevertheless, the trial Court was wrong when the proviso to Rule 1 of Order VIII of the said Code was invoked. The proviso to rule 1 of Order VIII of the said Code is not applicable to a written statement in answer to a Counter-claim. It is true that the trial Court passed an order “No Say” on 27th February 2008. The petitioners applied for setting aside the said order on 14th August 2008. 5 Considering the discretion conferred by sub-rule 3 of Rule 6A, the trial Court ought to have adopted a liberal approach in the facts of the case. The prejudice which may be caused to the respondents could have been compensated by payment of costs. 8. Hence, I pass the following order: : O R D E R : (a) The impugned order dated 6th December 2008 is quashed and set aside. (b) The trial Court is directed to take the written statement of the petitioners in answer to the Counter-claim on record, if tendered, within period of six weeks from today. (c) The petitioners are directed to pay costs of this petition to the respondents quantified at Rs.5000/-. Payment of costs will be a condition precedent. Deposit of the amount of costs with the trial Court within a period of six weeks from today will be treated as sufficient compliance. (d) Petition is allowed in above terms. (A.S.OKA,J)