Case: Atcom Technologies Limited Vs. Y.A. Chunawala and Co. and Ors

that order was affirmed by the Division Bench (and now even by this Court). While dealing with the instant matter, the High Court failed to consider those orders passed by the co-ordinate Benches.12. We find force and due merit in the aforesaid submissions of the learned Counsel for the Appellant.13. We shall proceed on the basis that summons in Suit No. 4870 of 1999 were served only in the year 2009. In this behalf, it may be stated that in this suit, unconditional leave to defend was granted by the learned Single Judge on March 16, 2002. By the same order, all three suits were directed to be tried together. Therefore, Vakalatnama in the suit was also filed and on the dates fixed before the Court, Respondents were appearing having knowledge about the Suit No. 4870 of 1999 as well. Obviously, this leave to defend was granted after the Respondents had put in appearance and filed application for grant of leave to defend. Thus, summons in the suit were served upon the Respondents, albeit, in Form 4 of Appendix B, as stipulated in Rule 2 of Order XXXVII of the Code of Civil Procedure, 1908. May be, thereafter, Writ of Summons were not served again upon the Respondents. However, in any case, these summons were served in the year 2009. Therefore, it was incumbent upon the Respondents to show as to in what manner they were prevented from filing the written statement.14. It has to be borne in mind that as per the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908, the Defendant is obligated to present a written statement of his defence within thirty days from the date of service of summons. Proviso thereto enables the Court to extend the period upto ninety days from the date of service of summons for sufficient reasons. Order VIII Rule 1 of the Code of Civil Procedure, 1908 reads as under:1. Written statement.-The Defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:Provided that where the Defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.15. This provision has come up for interpretation before this Court in number of cases. No doubt, the words shall not be later than ninety days do not take away the power of the Court to accept written statement beyond that time and it is also held that the nature of the provision is procedural and it is not a part of substantive law. At the same time, this Court has also mandated that time can be extended only in exceptionally hard cases. We would like to reproduce the following discussion from the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, (2005) 6 SCC 344 :21....There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The court has wide power to "make such order in relation to the suit as it thinks fit". Clearly, therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time-limit of 90 days. The discretion of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8 Rule 1.16. In such a situation, onus upon the Defendant is of a higher degree to plead and satisfactorily demonstrate a valid reason for not filing the written statement within thirty days. When that is a requirement, could it be a ground to condone delay of more than 5 years even when it is calculated from the year 2009, only because of the reason that Writ of Summons were not served till 2009?17. We fail to persuade ourselves with this kind of reasoning given by the High Court in condoning the delay, thereby disregarding the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 and the spirit behind it. This reason of the High Court that delay was condoned by balancing the rights and equities is farfetched and, in the process, abnormal delay in filing the written statement is condoned without addressing the relevant factor, viz. whether the Respondents had furnished proper and satisfactory explanation for such a delay. The approach of the High Court is clearly erroneous in law and cannot be countenanced. No doubt, the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 are procedural in nature and, therefore, hand maid of justice. However, that would not mean that the Defendant has right to take as much time as he wants in filing the written statement, without giving convincing and cogent reasons for delay and the High Court has to condone it mechanically. It is also to be borne in mind that when the matter was listed on January 29, 2015, it was specifically recorded that no written statement was filed and the two suits were adjourned for ex-parte decree. In other suit i.e. Suit No. 3813 of 2000, similar Notice of Motion seeking condonation of delay was rejected though it contained same kind of explanation and that order has been upheld till this Court. On this ground also, there was no reason to take a contrary view in the instant matter when both the suits were taken up together and proceed simultaneously.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]12. We find force and due merit in the aforesaid submissions of the learned Counsel for the Appellant13. We shall proceed on the basis that summons in Suit No. 4870 of 1999 were served only in the year 2009. In this behalf, it may be stated that in this suit, unconditional leave to defend was granted by the learned Single Judge on March 16, 2002. By the same order, all three suits were directed to be tried together. Therefore, Vakalatnama in the suit was also filed and on the dates fixed before the Court, Respondents were appearing having knowledge about the Suit No. 4870 of 1999 as well. Obviously, this leave to defend was granted after the Respondents had put in appearance and filed application for grant of leave to defend. Thus, summons in the suit were served upon the Respondents, albeit, in Form 4 of Appendix B, as stipulated in Rule 2 of Order XXXVII of the Code of Civil Procedure, 1908. May be, thereafter, Writ of Summons were not served again upon the Respondents. However, in any case, these summons were served in the year 2009. Therefore, it was incumbent upon the Respondents to show as to in what manner they were prevented from filing the written statement14. It has to be borne in mind that as per the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908, the Defendant is obligated to present a written statement of his defence within thirty days from the date of service of summons16. In such a situation, onus upon the Defendant is of a higher degree to plead and satisfactorily demonstrate a valid reason for not filing the written statement within thirty days. When that is a requirement, could it be a ground to condone delay of more than 5 years even when it is calculated from the year 2009, only because of the reason that Writ of Summons were not served till 2009?17. We fail to persuade ourselves with this kind of reasoning given by the High Court in condoning the delay, thereby disregarding the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 and the spirit behind it. This reason of the High Court that delay was condoned by balancing the rights and equities is farfetched and, in the process, abnormal delay in filing the written statement is condoned without addressing the relevant factor, viz. whether the Respondents had furnished proper and satisfactory explanation for such a delay. The approach of the High Court is clearly erroneous in law and cannot be countenanced. No doubt, the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 are procedural in nature and, therefore, hand maid of justice. However, that would not mean that the Defendant has right to take as much time as he wants in filing the written statement, without giving convincing and cogent reasons for delay and the High Court has to condone it mechanically. It is also to be borne in mind that when the matter was listed on January 29, 2015, it was specifically recorded that no written statement was filed and the two suits were adjourned for ex-parte decree. In other suit i.e. Suit No. 3813 of 2000, similar Notice of Motion seeking condonation of delay was rejected though it contained same kind of explanation and that order has been upheld till this Court. On this ground also, there was no reason to take a contrary view in the instant matter when both the suits were taken up together and proceed simultaneously.