Allowed

Shri. Keshav Shirvoikar and 3 Ors. v. Shri. Anand Shirodkar and 2 Ors.

Bombay HC27 Sept 2013WP/432/2013

Case brief

AI extract

What is this about?

High Court of Bombay at Goa set aside a Trial Court order rejecting an application to file a written statement. The bench held Order VIII Rule 1 CPC is directory and justified extension due to pending maintenance application, directing the Trial Court to admit the statement and impose costs.

What did the court decide?

Set aside impugned order; direct Trial Court to take written statement on record; direct petitioners to pay Rs.1,500 costs to plaintiffs.

Shri. Keshav Shirvoikar and 3 Ors. Vs Shri… — Civil Procedure and Limitation | Bombay HC (2013)

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO.432 OF 2013

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Shri Keshav Shirvoikar,

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Son of late Rama Shirvoikar,

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Age 63 years, married,

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Unemployed, Indian National.

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Shri Ganashyam Shirvoikar,

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Son of Shri Keshav Shirvoikar,

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27 years of age, unmarried,

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service, Indian National.

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Shri Ishwar Shirvoikar,

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Son of Shri Keshav Shirvoikar,

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30 years of age, unmarried,

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service, Indian National.

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Shri Vinod Shirvoikar,

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Son of Shri Keshav Shirvoikar,

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32 years of age, married,

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service, Indian National.

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All residing of H.No.115 (New),

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Gaulebhat, Chimbel, Tiswadi, Goa.

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…. Petitioners.

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V/s

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Shri Anand Shirodkar,

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Son of Narayan Shirodkar,

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Age 44 years, married,

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service, Resident of H.No.385,

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Gaulebhat, Chimbel, Tiswadi, Goa.

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Shri Atmaram Shirodkar,

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Son of Narayan Shirodkar,

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Age 58 years, married, service,

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Resident of H.No.117, Gaulebhat,

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Chimbel, Tiswadi, Goa.

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Village Panchayat Chimbel,

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Chimbel, Tiswadi-Goa. …. Respondents.

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Shri Nilesh Shirodkar, Advocate for the Petitioners. Shri Sanjay K. Mangueshkar, Advocate for Respondents No.1 & 2.

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CORAM : R.M. SAVANT, J.

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DATE : 27^th SEPTEMBER, 2013

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ORAL JUDGMENT :

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Rule. With the consent of the learned Counsel for the parties made returnable forthwith and heard.

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The writ jurisdiction of this Court under Article 227 of the Constitution of India is invoked against the order dated 22/01/2013 filed by the petitioners by which order the application at exhibit 15/D filed by them for being permitted to file the written statement came to be rejected. The said rejection is on the ground that the application has been filed after more than 5 months after the petitioners i.e. defendants no.1 to 4 were served with the summons. It has further been observed by the Trial Court that the said defendants have not filed their written statement within the time prescribed under Order VIII Rule 1 of the Civil Procedure Code.

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It is required to be noted that the petitioners herein had filed an

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application under Order 7 Rule 11 of the Civil Procedure Code questioning the maintainability of the suit. It appears that when the said application had come up for hearing before the Trial Court, the Trial Court had passed an order directing the defendants to file their written statement on 13/09/2011. The petitioners sought to place reliance on the judgment of the Apex Court reported in AIR 2003 SC 759 in the matter of Saleem Bhai And Ors. vs State Of Maharashtra And Ors. wherein the Apex Court has held that the defendant has the liberty to file the written statement beyond the period prescribed under Order VIII Rule 1 after the application for rejection of the plaint under Order VII Rule 11 is decided. It is probably labouring under the said impression that they were not required to file the written statement as their application under Order VII Rule 11 was pending, that the defendants did not file their written statement. It appears that application under Order VII Rule 11 is as yet pending.

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Be that as it may, since it is trite that Order VIII Rule 1 is held to be directory and not mandatory and that for just and sufficient reasons the time to file written statement can be extended, the facts of the present case being that the application under Order VII Rule 11 is as yet pending and that the defendants had not filed their written statement on the said

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basis, in my view, it would be just and proper to set aside the impugned order which is accordingly set aside and resultantly the written statement which they have filed alongwith their application is directed to be taken on record by the Trial Court. In the facts and circumstances of the case, the interest of justice would be served if the defendants i.e. the petitioners herein are directed to pay costs of Rs.1,500/- to be paid to the plaintiffs within two weeks from date. Rule is accordingly made absolute in the aforesaid terms with parties to bear their own costs.

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R.M. SAVANT, J.

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NH/-

Shri. Keshav Shirvoikar and 3 Ors. v. Shri. Anand Shirodkar and 2 Ors.

Case brief

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Shri. Keshav Shirvoikar and 3 Ors. v. Shri. Anand Shirodkar and 2 Ors.

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