- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.613 OF 2008 IN SUIT NO.1758 OF 2003 Jayesh Navalshankar Joshi. ...Plaintiff vs. Shantaram Vinayak Karnik & ors. ...Defendants --- Ms.D.R.Trivedi, for Plaintiff in suit. Mr.O.R.Tiwari, for Defendant no.1 in suit. Ms.S.Y.Mohili i/b. I.S.Thakur, for Defendant nos.2 to 4. Mr.G.T.Meshta, Commissioner for taking Accounts present. CORAM: CORAM: CORAM: S.C.DHARMADHIKARI,J. DATED: DATED: DATED: 17TH DECEMBER,2008. P.C. P.C. P.C.: 1. This is a chamber summons to take written statement and counter claim of the defendant on record. In the affidavit in support of this chamber summons it is contended that the suit was filed against the defendant no.1 initially on 13.6.2003 and the summons was issued. Thereafter, the plaintiff - 2 - moved a chamber order which was disposed of on 7.8.2003. Thereafter, certain interlocutory reliefs were sought in the suit but it is undisputed that chamber summons no.838 of 2006 was moved for adding defendant nos. 2 and 3 in the suit. That chamber summons was made absolute on 18.6.2007. It is stated that the amended plaint was not served for some time and again a chamber summons being no.1306 of 2007 for adding defendant no.4 in the suit was moved. That chamber summons was also allowed. Thereafter, amended writ of summons was served on 22.1.2008. However, the plaintiff’s Advocate disputed this date and stated that amended writ of summons was served on 3.1.2008. 2. Defendant no.1 has stated in the affidavit in support that though his advocate lodged written statement and the counter claim which were duly affirmed on 20.3.2007 and 12.9.2007 vide lodging no.2712 of 2007, on those written statement and counter claim certain office objections were raised, which objections were not removed until March,2008, and finally they were removed some time on 26.3.2008/5.4.2008. It is stated that after the concerned officer verified the fact that the office objections have been complied with, the written - 3 - statement and the counter claim were forwarded to the learned Prothonotary and Senior Master who admitted the said written statement and counter claim on 7.4.2008 and assigned number being Counter claim no.18 of 2008. 3. Further, it is not disputed before me that the matter was placed before the Master and Commissioner on 22.1.2008. It was adjourned to 18.3.2008 for filing written statement. On 18.3.2008, before the Master and Commissioner, the plaintiff’s Advocate was present so also Advocate for Defendant nos.2 to 4 was present. There was no written statement filed by defendant no.1, and that is how the suit was transferred to the list of undefended suits. It is also not now disputed before me that on 2.4.2008 the matter was mentioned by the first defendant’s Advocate for revoking the order passed on 18.3.2008, but the Commissioner refused to revoke and recall that order on the ground that the office objections raised to the counterclaim which was already lodged, have not been removed. He was directed to take appropriate steps in the matter. 4. Chamber summons is now praying recalling of the order passed by the Commissioner and for an - 4 - opportunity to defendant no.1 to defend the suit claim as also for taking the counterclaim on record. 5. It is stated that inadvertently the title of the counterclaim has remained to be corrected and the title may be permitted to be corrected so that plaintiff and defendants to the suit can be shown properly as parties to the counterclaim. 6. It is stated that the first defendant is a senior citizen and keeping ill health and therefore, this Court should not deprive him of opportunity to defend the claim. 7. This matter was argued before me yesterday and the learned Advocate for plaintiff vehemently objected for any relief being granted on this chamber summons. It was her case that the first defendant has suppressed from this Court the fact that the written statement and the counterclaim were merely lodged by him but at no stage they ever accepted and numbered. Knowing fully well this fact, the first defendant and his Advocate remained absent on 18.3.2008. It is also clear from the record that writ of summons was duly received and yet no written statement and counterclaim was filed. This is not - 5 - the case where the first defendant was unaware of institution of the suit in as much as the suit was filed against the defendant no.1 so also it was amended is a subsequent development. Merely, because the plaint was amended and the parties are added, it does not meant that for five years no written statement or counterclaim can be filed by a party who is the original Defendant. All explanations given for alleged delay and lapses are false and therefore, should not be accepted. 8. Having perused the entire material and considering the fact that now it is not disputed before me that the counterclaim has been numbered by the Registry, so also the written statement is accepted, in the facts peculiar to this case and in the larger interest of justice I am not depriving the first defendant of an opportunity to defend this suit and prove his counterclaim. However, it is clear from the record that in the Registry itself conflicting orders are passed. If the counterclaim and written statement are under objections, and therefore, one officer proceeded on the basis that there is no defence raised to the claim, he directed that the suit be placed for ex-parte hearing, at the same time another officer allows the counterclaim to - 6 - be numbered and in fact accepts the written statement and the counterclaim. It appears that after 18.3.2008, the concerned official who was approached by the first Defendant’s Advocate ought not to have permitted removal of any office objections once clear order was passed setting down the suit for ex-parte hearing. Then it was for the Registry to abide by its order and direct the parties to get appropriate directions from the Court before the written statement and the counterclaim can be taken on record. Not only on 18.3.2008 but on 2.4.2008 as well the first defendant was not given an opportunity to defend the claim by the Commissioner, yet, another officer in the Registry allowed the office objections to be removed and proceeded to register the counterclaim. Although, the Commissioner is personally present before me and has pointed out from the Roznama the orders made by him from time to time, it appears to me that the functioning of the Registry leaves lot to be desired. It shows total lack of co-ordination amongst various officers in the Registry. This prejudices the litigants and ultimately they lose their faith in the working of the judicial system. This must be avoided. 9. However, once the counterclaim has been - 7 - registered, as observed above, it will not be proper to deprive the first defendant of an opportunity to defend the claim, therefore, chamber summons is made absolute in terms of prayer clause (a) and (b) subject to the first defendant paying cost quantified at Rs.7500/-. Cost be paid to the plaintiff’s Advocate or the plaintiff within a period of two weeks from today. 10. It is clarified that merely because the Registry has numbered the counterclaim and this chamber summons is made absolute, it does not mean that the original plaintiff to the suit is precluded from raising issue of limitation and maintainability of the Counter-claim. The said issue can always be raised and all pleas in that behalf are kept open. In the light of the fact that the counterclaim has been accepted by the original plaintiff/ his Advocate, plaintiff is at liberty to file written statement to the counterclaim and that written statement should be filed within a period of three weeks from today and this written statement be taken on record provided all office objections are complied with. Place the matter on 15.1.2009. - 8 - (S.C.Dharmadhikari, J.)