[ 1 ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO. 3565 OF 2008 DINYAR P. DUBHASH & ORS. .. PETITIONERS. VS. TEHEMTAN K. ENGINEER .. RESPONDENT. MR. VISHAL KANADE I/B. M/S. NARAYANAN & NARAYANAN FOR THE PETITIONERS. MS. USHA TIWARI FOR THE RESPONDENT. CORAM CORAM CORAM : A.A.Sayed, J. : A.A.Sayed, J. : A.A.Sayed, J. DATE DATE DATE : June 9, 2008. : June 9, 2008. : June 9, 2008. P.C. 1. Rule. By consent rule made returnable forthwith and heard finally. 2. This petition is directed against the order dated 14.2.2008 passed by the City Civil Court Bombay, whereby it ordered that the suit be proceeded without written statement. 3. The Suit is filed by the respondent in the Trial Court against the petitioners inter alia praying [ 2 ] for permanent injunction restraining the petitioners from dealing with the suit property. There was a delay on the part of the petitioners in filing their W.S. An Application on behalf of the petitioners came to be filed for taking the written statement on record on 14th February, 2008. According to the petitioners the written statement was affirmed some time on 8th March, 2007, on which date the Trial Court had adjourned the matter for filing the W.S. However, as the matter was not called out for hearing on that day, the board came to be discharged and the matter was adjourned to 16th April, 2007. The matter thereafter was adjourned on several occasions without it being called out and the board was discharged on the said occasions. It is further the case of the petitioners that the written statement inadvertently remained to be filed in the suit. The learned Counsel for the petitioners sought to argue that impugned order has been passed without considering the separate application of the petitioner for condonation of delay. He submitted that the delay was not deliberate or intentional and that the suit itself was filed some time in April 2006. The learned Counsel for the petitioners further submitted that the petitioners were also pursuing the notice of motion which was filed in the trial Court, which ultimately came to be dismissed on 28.1.2008 and it cannot be said that the petitioners were negligent in the matter. 4. The learned Counsel for the petitioners has [ 3 ] relied upon the decisions in case of (1)NANDLAL (1)NANDLAL (1)NANDLAL VITTHALDAS VITTHALDAS VITTHALDAS AND CO. SHEGAON VS. AGRICULTURAL PRODUCE AND CO. SHEGAON VS. AGRICULTURAL PRODUCE AND CO. SHEGAON VS. AGRICULTURAL PRODUCE MARKET MARKET MARKET COMMITTEE, SHEGAON, reported in 2006(1) Mh.L.J. COMMITTEE, SHEGAON, reported in 2006(1) Mh.L.J. COMMITTEE, SHEGAON, reported in 2006(1) Mh.L.J. 128; 128; 128; (2) SHAIKH SALIM HAJI ABDUL KHAYUMSAB VS. KUMAR (2) SHAIKH SALIM HAJI ABDUL KHAYUMSAB VS. KUMAR (2) SHAIKH SALIM HAJI ABDUL KHAYUMSAB VS. KUMAR AND AND AND OTHERS, OTHERS, OTHERS, reported in (2006) 1 SCC 46; (3) SURYA DEV reported in (2006) 1 SCC 46; (3) SURYA DEV reported in (2006) 1 SCC 46; (3) SURYA DEV RAI RAI RAI VS. RAM CHANDER RAI, in (2003) 6 SCC 675; (4) VS. RAM CHANDER RAI, in (2003) 6 SCC 675; (4) VS. RAM CHANDER RAI, in (2003) 6 SCC 675; (4) VITHAL VITHAL VITHAL RAMCHANDRA PATIL VS. BHAGWAT WAMAN GAIKWAD, RAMCHANDRA PATIL VS. BHAGWAT WAMAN GAIKWAD, RAMCHANDRA PATIL VS. BHAGWAT WAMAN GAIKWAD, reported reported reported in 1996(2) Mh.L.J. 1064. in 1996(2) Mh.L.J. 1064. in 1996(2) Mh.L.J. 1064. Referring to the aforesaid decisions, the learned Counsel for the petitioner submitted that Order VIII Rule 1 of the CPC provides extended period of 90 days for filing the written statement and the said period can be further extended in special circumstances. He submitted that the nature of the provisions contained in Order VIII Rule 1 is procedural and the object is to expedite the hearing and not to scuttle the same and the Court has power to extend the time in filing the written statement and that the petitioners can be put to terms in that behalf. 5. The learned Counsel for the respondent on the other hand submitted that in the present case no exceptional circumstances have been made out. She submitted that it cannot be said that the written statement was not filed within the prescribed period due to the events which were beyond the control of the petitioners. She further argued that the matter was, time and again adjourned by the Trial Court and once the time is fixed by the Court and the written [ 4 ] statement is not filed within that time, the defendant looses his right to file the written statement. The learned Counsel for the respondent, on the other hand has relied upon the case of (1) IRIDIUM INDIA TELECOM (1) IRIDIUM INDIA TELECOM (1) IRIDIUM INDIA TELECOM LTD., LTD., LTD., BOMBAY VS. MOTOROLA INC, reported in 2004(1) BOMBAY VS. MOTOROLA INC, reported in 2004(1) BOMBAY VS. MOTOROLA INC, reported in 2004(1) Mh.L.J. Mh.L.J. Mh.L.J. 532; (2) SHAILAJA A. SAWANT (DR) VS. 532; (2) SHAILAJA A. SAWANT (DR) VS. 532; (2) SHAILAJA A. SAWANT (DR) VS. SAYAJIRAO SAYAJIRAO SAYAJIRAO GANPATRAO PATIL, reported in 2004(2) Mh.L.J. GANPATRAO PATIL, reported in 2004(2) Mh.L.J. GANPATRAO PATIL, reported in 2004(2) Mh.L.J. 419; 419; 419; (3) PRABHAKAR MADHAVRAO MULE VS. BHAGWAN (3) PRABHAKAR MADHAVRAO MULE VS. BHAGWAN (3) PRABHAKAR MADHAVRAO MULE VS. BHAGWAN MITHARAM MITHARAM MITHARAM CHOUDHARI, reported in 2004(2) Mh.L.J. 1058. CHOUDHARI, reported in 2004(2) Mh.L.J. 1058. CHOUDHARI, reported in 2004(2) Mh.L.J. 1058. 6. I have considered the rival contentions of the parties and perused the material on record. I find that though the application was made on 14th February, 2008 for taking the written statement on record, the written statement was infact affirmed as far back as on 8th March, 2007 and the same merely remained to be filed. It cannot be disputed that there has been substantial delay in filing the written statement and the time granted by the Trial Court expired. Either of the counsel however could not however inform the Court as to exactly when the writ of summons came to be served upon the petitioners. It is noted that the notice of motion between the parties was pending at the relevant time and the same was being contested by the petitioners in the Trial Court and that motion ultimately came to be dismissed only on 10.1.2008. It is further noted that the case of the petitioners that in the Trial Court, the Advocate for the Respondent had in fact consented to the W.S. of the petitioners being [ 5 ] taken on record, is not disputed. 7. Considering the facts and circumstances of the case, I am of the view that the facts of the case fall within the umbrella of special circumstances and the facts are not such that the petitioners deserve to be non-suited. The respondents can be compensated by awarding costs. The provisions of Order VIII Rule 2 of the CPC are procedural and not a part of substantive law. The observations in paragraph 10 of the decision in case of SHAIKH SALIM HAJI ABDUL KHAYUMSAB (supra) are relevant and are reproduced hereunder :- "10. All the rules of procedure are the hand maid of justice. The language employed by the draftsman of procedural law maybe 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 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." [ 6 ] 8. In this view of the matter, the petition is allowed and the impugned Order is set aside, subject to cost of Rs. 10,000/- to be paid by the petitioners to the respondent. Costs to be paid within two weeks. Written statement to be filed in Trial Court within three weeks. Costs to be condition precedent. Rule is made absolute accordingly. ..... [A.A.Sayed, [A.A.Sayed, [A.A.Sayed, J.] J.] J.]