1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5720 OF 2008 Mr.Shridhar Bhikaji Rahate. ..Petitioner. V/s. Mr.Mangalbhai K. Patel & Anr. ..Respondents. Mr.I.S.Singh & U.V.Singh for petitioner. Mr.Sagar Joshi for respondents. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : AUGUST 13, 2008. DATE : AUGUST 13, 2008. DATE : AUGUST 13, 2008. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule Made returnable forthwith by consent. 3. Mr.Joshi waives notice for both the Respondents. 4. As short question is involved, Petition is taken up for final hearing forthwith by consent. 5. This Petition takes exception to the Judgment an Order passed by Civil Judge, Sr. Division, Thane dated 4th March, 2008 in Regular Civil Suit No. 97 2 of 2006. The said Order was passed on Application filed by the Respondent for condoning delay in filing Written Statement and to take Written Statement on record. The application filed before the trial Court reads thus: "1. As soon as these defendants received the summons of the suit they filed two applications for dismissal of suit on preliminary ground more particularly as mentioned therein. The said applications were filed in February, 2006 while it took about 20 months for plaintiff to file say which was ultimately fled September, 2007. However, even thereafter on one reason or the other plaintiffs avoided to argue the said applications. 2. Defendants further state that in the anticipation that the said applications will be shortly heard and by the order passed there under the suit will be dismissed. Defendants did not file their written statement on record. For this reason plaintiff also never pressed for the same nor till date order of "Suit to proceed without W.S." is passed. However, due to the ever rising illegal acts of the plaintiff, defendants are required to make an application seeking Injunction against the Plaintiff. As such it is deemed expedient to make statement on facts by way of filing Written Statement. It is thus clear that there was no intentional delay to file W.S. No. prejudice will cause to plaintiff if W.S. is allowed to be filed. 3. It is therefore, prayed that defendant may be allowed to file W.S. and the same may be taken on record." While allowing the said Application, the trial Court passed only operative order without recording 3 detailed reasons, which reads thus: "ORDER . Perused the application and say filed by the Plaintiff at Exhibit 40. In order to avoid multiplicity of litigation and in view of the ratio laid down in Solemn Bar Association, the Written Statement is taken on record so as to award a fair chance to the parties. Hence application stands allowed and written statement taken on record. Sd/- 04-03-2008" Correctness of the above order is put in issue in the present Writ Petition. 6. After hearing Counsel for the parties, I find force in the argument of the Petitioner that the trial Court has passed impugned Order, which is not in accord with the principle for exercising discretion by the Court, as is expected in view of the settled legal position. I am inclined to take this view as even on fair reading of the application filed before the lower Court, the only reason that can be discerned from the Application is that the Respondents did not tender Written Statement in earlier point of time since they had taken out two applications for dismissal of suit on preliminary ground and were expecting favourable decision on the said applications. It is not in dispute that the 4 suit summons was duly served on the Respondents in January, 2006. Soon after service of suit summons, the Respondents took out two applications for dismissal of the suit on preliminary ground in February, 2006. It is common ground that the said applications remained pending before the Court below for sufficiently long time. Present application has been filed by the Respondents only on 16th February, 2008, which is after over two years from the date of service of suit summons. 7. Question to be considered by the trial Court therefore was whether the fact that two applications have been filed by the Respondents praying for dismissal of the suit on preliminary ground, pendency thereof can be stated to sufficient cause for not filing written statement. The answer is an emphatic no. The Law requires the Defendants to file Written Statement within stipulated time. It was open to the Defendants to raise preliminary objection even in the Written Statement. The Defendants cannot extricate themselves of the obligation provided under Order 8 Rule 10 on the premiss that they have filed application for dismissal of the suit on preliminary ground. 5 8. To get over this position, Counsel for the Respondents has invited my attention to the exposition in the case of Salem Advocates Bar Salem Advocates Bar Salem Advocates Bar Association, T.N. v/s. Union of India reported in Association, T.N. v/s. Union of India reported in Association, T.N. v/s. Union of India reported in 2005(5) All M.R.(S.C.) 876 2005(5) All M.R.(S.C.) 876 2005(5) All M.R.(S.C.) 876, Even the trial Court has adverted to the said decision. However, this decision is not in authority on the proposition that the ground pressed into service by the Respondents for not filing Written Statement on account of pendency of two applications for dismissal of Suit on preliminary ground can be said to be sufficient cause. That can never be a sufficient cause for not filing written statement. My attention is invited by the learned Counsel to the dictum of our High Court in the case of Pandurang Desai V/s. Beraidin Tavares Pandurang Desai V/s. Beraidin Tavares Pandurang Desai V/s. Beraidin Tavares reported in 2006(6) AIR Bom R 604 equivalent to AIR 2006(6) AIR Bom R 604 equivalent to AIR 2006(6) AIR Bom R 604 equivalent to AIR 2007(NOC) 109(BOM), 2007(NOC) 109(BOM), 2007(NOC) 109(BOM), which has rejected such contention by observing that taking ground of initiation of various proceedings by plaintiff and defendant which is not relevant ground to seek time for filing written statement. Applying the same analogy to the case on hand as aforesaid, the fact that two applications filed by the Respondents for disposal of the suit cannot be termed as sufficient cause for condoning delay in filing Written Statement for over two years. 6 9. Counsel for the Petitioner invited my attention to the decision in the case of M/s.Aditya M/s.Aditya M/s.Aditya Hotels (P) Ltd. vs. Bombay Swadeshi Stores Ltd. & Hotels (P) Ltd. vs. Bombay Swadeshi Stores Ltd. & Hotels (P) Ltd. vs. Bombay Swadeshi Stores Ltd. & Ors. reported in AIR 2007 SUPREME COURT 1574 Ors. reported in AIR 2007 SUPREME COURT 1574 Ors. reported in AIR 2007 SUPREME COURT 1574, wherein it is observed that reason has to be recorded by the Court so as to justify the acceptance of delay in filing Written Statement beyond the statutory period. In the present case also the trial Court has merely recorded that to give fair chance to the parties, the Written Statement will have to be taken on record. Giving fair chance to the parties by itself cannot be the basis to show indulgence to the Defendants especially when the delay is of over two years in filing Written Statement. 10. Taking any view of the matter, the Order in question cannot be sustained either on facts or in law, for which reason the same deserves to be set aside as the Court has not correctly exercised discretion in favour of the Defendants. 11. Accordingly, this Writ Petition succeeds. The impugned Judgment and Order is set aside. Instead, the Application preferred by the Respondents for condoning delay in filing Written Statement and 7 taking written statement on record is dismissed with cost. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)