Allowed

Om Sai Developers Pvt. Ltd. v. Liberty Welfare Society and Anr.

Bombay HC27 Apr 2010WP/1356/2010

Case brief

AI extract

What is this about?

This writ petition challenges an order dismissing a notice of motion to set aside a trial court direction to proceed without a written statement. The High Court held that without clear evidence of service or express waiver of the writ of summons, the period for filing a written statement had not expired, ordering the writ petition to be allowed and the trial court order quashed.

What did the court decide?

The impugned order dated 6th January 2010 was quashed and set aside; the Notice of Motion was made absolute and the written statement was taken on record.

Om Sai Developers Pvt. Ltd. Vs Liberty Welfare… — Civil Procedure and Limitation | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.1356 OF 2010

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M/s.Om Sai Developers Pvt Ltd.

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.. Petitioner

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versus

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Liberty Welfare Society & Ors.

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.. Respondents

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Mr.C.N.Gole i/by Mr.S.G.Surana for the petitioner. Mr.D.R.Shah for respondent Nos.1 and 2.

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CORAM : A.S.OKA, J. DATE : 27^th April 2010.

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P.C.:

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. On 25^th February 2010, notice for final disposal was issued by this Court. The petitioner is the original defendant and the respondents are the plaintiffs. By the impugned order, notice of motion taken out by the petitioner has been dismissed by the trial Court. The notice of motion was taken out for setting aside the order dated 20^th January 2009 passed by the trial Court by which it was directed that the suit will proceed without the written statement of the pettitioner.

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While issuing notice on 25^th February 2010 this Court recorded submission of the learned counsel appearing for the petitioner that writ of summons has not been served to the petitioner and there is no express waiver of service of writ of summons. The learned counsel appearing for the respondents invited my attention to the findings recorded by the trial Court

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while dismissing the notice of motion. He pointed out that the Court has drawn inference that the writ of summons was waived by the petitioner. He, therefore, submitted that the trial Court was justified in rejecting the prayer in a suit of the year 2006.

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I have considered the submissions. The period provided in Rule 1 of Order VIII of the Code of Civil Procedure, 1908 is to be computed from the date of service of summons. If service of writ of summons is expressly waived, the period will have to be computed from the date on which service is waived. In the present case admittedly there is no order recording that the petitioner has waived service of summons. What is observed in the impugned order is merely an inference. Only on the basis of the inference drawn, drastic provision of Rule 1 of Order VIII of the said Code cannot be applied. There is no material placed on record to show service of writ of summons. Moreover, the observations made by the trial Court in the impugned order show that the petitioner always intended to defend the suit in as much as it is specifically held that while opposing the notice of motion for interim relief, the petitioner had filed a reply dealing with various averments made in the plaint.

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In absence of clear evidence of service of writ of summons or in absence of any material to show that the service of writ of summons was expressly waived, the trial Court could not have held that the period for filing written statement provided in Rule 1 of Order VIII of the said Code had

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expired. Therefore, the trial Court ought to have permitted to petitioner to file written statement.

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At this stage, the learned counsel appearing for the respondents pointed out that a specific direction was earlier given by the trial Court to the petitioner to file written statement. Rule 1 of Order VIII of the said Code can be applied only from the date of service of writ of summons and therefore, the said submission has no merit.

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Hence, I pass the following order:

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: O R D E R :

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(a) The impugned order dated 6^th January 2010 is quashed and set

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aside.

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(b) The Notice of Motion No.293 of 2009 is made absolute and the

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written statement tendered by the petitioner shall be taken on record.

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costs.

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(A.S.OKA,J)

Om Sai Developers Pvt. Ltd. v. Liberty Welfare Society and Anr.

Case brief

What is this about?

What did the court decide?

Om Sai Developers Pvt. Ltd. v. Liberty Welfare Society and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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