Smita Arvinda Apte and Anr. Vs Ashok Pandurang Potdar

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[1]

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 APPELALTE JURISDICTION

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 WRIT PETITION NO. 1866 OF 2005

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 1. Sou. Smita Arvinda Apte,
 R/o Chitralekha Apartment,
 Hospital Road, Sangli-416416.

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 2. Shri Ashok J. Patil,
 R/o Shikshan Sanchanalaya,

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 Pune Camp, Pune. .. Petitioners.

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 (Ori. Defendants)
 Vs.

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 Shri Ajay Pandurang Potdar
 R/o Chintamani, Near Collector Office,

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 Rajwada, Sangli ..Respondent
 (Orig. Plaintiff.)

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 Mr. T.S. Ingale for the petitioners
 Mr.A.M. Kulkarni for the respondent

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CORAM : ANOOP V.MOHTA J.

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DATE : 12TH DECEMBER, 2005.

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ORAL JUDGMENT

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 . The petitioners-original defendants failed to

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 deposit the cost,within the stipulated time even though

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 ordered by the trial Court. The petitioners’
 application under section 148 of Civil Procedure Code
 (C.P.C.) for extension of time to deposit the cost was
 rejected by an order dated 15/9/2004. An application,
 was allowed for taking written Statement on record,
 subject to payment of a cost of Rs. 150/- to the
 respondents plaintiffs, within one month.

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[2]

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 2. Heard the learned Counsel appearing for the

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 parties. Admittedly, the suit was filed on 11th
 February, 2002 by the plaintiff against the defendants
 for perpetual injunction restraining the defendants from
 causing obstruction to his possession of the suit
 property. There was an inordinate delay in filing a
 written statement. Therefore, an application was filed
 to take written statement on record. By an order dated
 15/9/2004, same was granted subject to the payment of
 cost of Rs. 150/-, to be deposited within one month,
 that expired on 15/10/2004. As defendants failed to
 deposit the cost within stipulated time, another
 application was filed under section 148 of C.P.C., on
 3/2/2005 and requested to extend the time to deposit the
 said cost. On the same day, vide order dated 3/2/2005,
 the said application was rejected. There was no
 question of grant of any extension as prayed. He
 further contended that there was no ground of
 exceptional circumstance was made out by the
 petitioner-original defendants to move such an
 application after more than 2-1/2 months. There is no
 case to interfere with the order passed by the lower
 Court. Reliance has also been placed on a Division

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[3]

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 Bench Judgment (Chintaman Sukhdeo Kaklij and Others V.
 Shivaji Bhausaheb Gadhe and others) (2004 (4) Mh.L.J.,
 739).

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 3. The Apex Court in (Salem Advocate Bar
 Association, Tamil Nadu V. Union of India )( 2005(6)
 Scale, 26) while, considering various aspects of
 amendment Act 1999. to the C.P.C. has expressed that
 the Court has power in exceptional and extraordinary
 circumstances to use the discretion and to grant such
 extension of time. The learned Counsel appearing for
 the parties further strongly relied on the decision in
 (Ujwala Athare (Patil) V. Asha Ravindra Paranjape (2004
 (2) Mh.L.J. 1126), whereby, while considering the
 amended provisions of C.P.C. and specifically order 5
 Rule 1 and order 8 rule 1, a Single Judge of this Bombay
 High Court has observed, that when a suit was instituted
 prior to 1/7/2002, provisions of Order 5 Rule 1 of the
 Code of Civil Procedure, 1908 as amended by Act of 22 of
 2002 would not apply. It is further observed that the
 requirement of filing written statement within 30 days
 in terms of amended provisions of Order 8, Rule 1 also
 would not apply in such case. The Apex Court in (Mr.
Shaikh Salim Haji Abdul Khayumsab V. Mr. Kumar and

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[4]

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Ors.) 2005 (9) Scale 413 And 2005 (10) (1) J.T. SCC by
 referring Apex Court decision in Shaikh Salim (Supra)
 observed as under;

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 "All the rules of procedure are the handmaid of justice.
 The language employed by the draftsman of procedural law
 may be 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
 Stature, the provisions of the CPC or any other
 procedural enactment ought not to be construed in a
 manner which would leave the court helpless to meet
 extraordinary situations int he ends of justice."

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 The Apex Court has to accept written statement beyond

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 the period of 90 days in the facts and circumstances of
 the case.

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 4. There is no dispute that the trial Court has
 admittedly, granted an applications of the defendants to
 take written statement on record. That order remained
 final. Therefore, by the impugned order, it is very
 clear that the defendants would not be in a position to
 file the written statement, even though, it was ordered
 to be and permitted to be taken on record. After
 reading the order, it is very clear that the

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[5]

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 defendants-petitioners would suffer injustice only

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 because, they failed to deposit the cost within
 stipulated time. It is true that no sufficient reason
 have been made out in the application for not depositing
 the amount within stipulated time. However, considering
 the nature of dispute between the parties and
 considering the fact that the Court has already granted
 permission to the defendants to file the written
 statement. I am of the view that for want of not
 depositing cost within stipulated period the party
 should not be deprived of their rights to contest the
 proceeding by filing a written statement.

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 5. Taking all this into account, I am inclined to
 consider the case of the petitioner. Impugned order
 therefore, is quashed and set aside. Application for
 extension of time under section 148 of C.P.C., as filed
 by the defendants is allowed.

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 6. However, this is subject to cost of Rs. 2000/-
 to be paid to the plaintiff, within four weeks, as a
 condition precedent of this order. Writ Petition is
 accordingly allowed in terms of prayer clause (a) and
 (b). No order as to cost.

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[6]

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[ANOOP V. MOHTA, J.]

Smita Arvinda Apte and Anr. v. Ashok Pandurang Potdar

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Smita Arvinda Apte and Anr. v. Ashok Pandurang Potdar

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