1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5140 OF 2008 Smt. Manasi Shirish Joshi and another .. Petitioners Versus Smt. Seema Rajendra Sulakhe and others .. Respondents Mr. Amogh Paralikar for the petitioners Mr. S.V. Pitre for Respondent No.1, Mr. Mahesh Subramaniam for Respondents 2 to 4 CORAM: MRS. MRIDULA BHATKAR, J. DATED: 28th April, 2009 J U D G E M E N T 1. Rule, returnable forthwith. By consent of the parties, taken up for final hearing. 2. Heard the Learned Counsel for the parties. 3. This Writ petition is filed against the order passed by the learned Civil Judge, Senior Division, Pune, dated 10th June, 2008 rejecting the application of the petitioners for setting aside the order of “No W.S”. 2 4. Factual Matrix : The petitioners are the defendants in Special Civil Suit No.126 of 2003. In the suit, the defendants i.e. present Petitioners appeared before the Court pursuant to service of summons on 7th April, 2003 and sought adjournment to file written statement and to engage advocate. Thereafter, the matter was fixed on 2nd May, 2003 and on that day the petitioners were present and sought adjournment by filing written application. The matter was fixed on 18.6.2003 and on that day, the petitioners remained absent and did not file written statement. So, the order to proceed suit without written statement of the petitioners/defendants was passed. Being aggrieved with the said order, the petitioners filed application seeking relief that “No W.S.” order be set aside. However, the said application was rejected. Hence, this petition. 5. Submissions : The learned counsel appearing for the petitioners has submitted that the petitioners were not properly served as contemplated under Order 5 Rule 1 of the Civil Procedure Code. A specific mention of the appearance for the purpose of filing written statement within a period of 30 days ought to have been there in the proforma of the summons. However, the form of summons which was served on the petitioners did not contain this necessary information required under order 5 Rule 1 of CPC. The summon was sent as per Appendix B Form 3, which speaks about summons to appear in person as per Order 5 Rule 3 i.e. for the appearance of the parties in person. 3 6. The learned counsel for the petitioners, in order to buttress his submissions, drew attention of this court to the amendment carried out by the Delhi High Court in the Form of Summons is in consonance with Order 5 Rule 1 of CPC, wherein there is specific mention of the appearance for the purpose of filing written statement within 30 days. The leaned counsel has submitted that in the absence of such a intimation from the court, the petitioners failed to understand why they were required to appear before the Court and whether they have to file written statement within a stipulated period of 30 days or not. He further added that when the petitioners appeared before the Court, they did not engage any advocate of their choice and they themselves have sought adjournment by placing the application on record. Learned counsel, in support of his contentions, further submitted that Order 5 rule 1 or Order 8 Rule 1 of CPC, which are in respect of written statement go hand in hand and in support of this submission, he placed reliance of on the following decisions: (1) R.N. Jadi & Brothers & others Vs. Subhashchandra reported in (2007) 6 SCC 420. “12. In addition to the time limit prescribed in Order 8 rule 1 of the code, it is provided in Order 5 o rule 1 that the summons issued to the defendant should itself provide that he has to appear and file his written statement within one month of receipt of it and limiting the power of the Court to extend the time for written statement to 90 days. The summons is to 4 be accompanied by a copy of the plaint. ” (2) Shri Madhav Narayan Naik Kundalkar Vs. Smt. Abida Bi w/o Late Mullam Focruddin Muzawar and others . “Civil amendment- order 5 rule 1 and order 8 Rules 1, 2 5(2), 6, 7, 9, 9(A), 10, 21, 24 and 25 of civil Procedure Code (Amendment )Act, 1999 and Section 9 of Civil Procedure Code (Amendment) Act, 2002- Suit filed before 1.7.2002- whether amendment to Orders 5 and 8 apply to pending suits- amendments to orders 5 and 8 came into effect from 1.7.2002- object of amendment was to avoid delays and to see that written statements are filed as expeditiously as possible to give effect to object of speedy justice and at same time not to deny fair opportunity to litigant – in respect of pending proceedings Order 5 Rule 1 would not apply- summons not served in terms of amended order 5 and Order 8 Rule 1 would not apply to pending proceedings- it is open for Court to direct party to file written statement within time as contemplated by amended provisions of order 8 Rule 1- Court can reject application for filing written statement only when party does not file it within such time or at any time within extended period of 90 days.” 7. The learned counsel appearing for the petitioners has further submitted that till passing of the order on 10th June, 2008, no further steps were taken and considering the purpose of filing the written statement the learned Trial Judge ought to have given/granted permission to file written statement and the impugned order of refusal to set aside the order of “No W.S.” is erroneous and requires to be quashed and set aside. 8. Per contra, the learned counsel appearing for the 5 respondents has submitted that the petitioners have appeared on 7.4.2003 and they have filed application specifically mentioning that they wanted to file written statement and to engage Advocate. After considering the appearance given by the defendants/present petitioners, the Trial Court, in order to avoid further delay, has rightly passed order of “No W.S”. It is further submitted that as per Order 5 Rule 1 of Civil Procedure Code, the petitioners' written statement was to be filed within stipulated period and, therefore, no interference is called for in the said order. Further, the contention of defective service of summons was not raised by the Defendants/petitioners before the Trial Court and the petitioners are coming before the Court 5 years after the impugned order. 9. Consideration : Having regard to the provisions under Order 5 Rule 1 of CPC, the contents in the form of summons need to be in consonance with the said provisions. Form No.3 in Appendix B of CPC is in respect of appearance of the parties in person. It does not say specifically about filing of the written statement within 30 days. If a specific provision is made under Order 5 Rule 1 of CPC, then, as a necessary corollary, Form No.3 in Appendix B or Form 1 of Appendix B ought to have been corrected so. However, it appears that till today, no such modification/correction is made by the State and so, the summons was issued in the old form. The purpose of incorporating Order 5 Rule 1 is to give clear knowledge to the party, why he has to appear before the Court and to make the 6 party aware that it is obligatory on the part of the party to file written statement within a period of 30 days. The legal position on this issue that Order 5(1) or Order 8(1) go hand in hand is well discussed and is settled law as per the rulings referred above. 10. In the present case, it is necessary to consider the factual matrix in respect of the dates of appearance and the contents in the adjournment application submitted by the petitioners/defendants. On 7.4.2003 the petitioners/defendants have appeared and filed application wherein they have specifically mentioned that they wanted time to file written statement. It shows that the petitioners had knowledge that they were called to appear before the court to file the written statement and they had to file the written statement. Once, it is specifically mentioned by the petitioners in the application for adjournment, at this stage, the petitioners cannot resile from that stand and are not entitled to take the benefit of procedural lacuna. The signature of the petitioners is seen below the said application and the same is in English. So, the defence of illiteracy is not open for them. Moreover, the petitioners again appeared before the Trial Court on 2nd May, 2003 and sought adjournment. Thereafter, the petitioners did not remain present in the Trial Court and “No W.S.” Order was passed on 18.6.2003. Thereafter, nearly about 5 years, the petitioners did not bother to come to the Court. The application praying to set aside the “No W.S.” order was made after five years which obviously suffers from latches. No justifiable 7 reason was advanced by the petitioners to explain the delay and so, it was rejected by the learned Trial Court. 11. The another limb of the argument of the petitioners that till today the suit did not travel any further does not hold any substance. As such, the impugned order dated 10th June, 2008 needs no interference by this Court. In the result, this petition is dismissed with no order as to costs. At the end, it is to be noted that the forms of the summons in Appendix “B” are required to be modified. The Registrar General to take necessary steps by placing it before the Rule Committee and also to be pointed out to the Law & Judiciary Department for necessary corrections. ( MRIDULA BHATKAR, J.) jpc/-