Allowed

Bharat Chaturbhuj Naik v. Ranoji Chaturbhuj Naik

Bombay HC22 Apr 2013WP/772/2012

Case brief

AI extract

What is this about?

This is an original jurisdiction petition challenging the rejection of an application to set aside an ex parte order and permit filing of a written statement. The court held Order VIII Rule 1 CPC is directory, quashed the trial court order, and allowed the defendant to file his statement within three weeks.

What did the court decide?

Impugned order rejected for setting aside ex parte order and admitting written statement is quashed; defendant permitted to file written statement within three weeks.

Bharat Chaturbhuj Naik Vs Ranoji Chaturbhuj Naik — Execution and Attachment | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.772 of 2012

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Bharat C. Naik versus Ranoji C. Naik

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: Petitioner

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: Respondent

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Mr. S. S. Redekar for the Petitioner Mr. Sagar Kasar for the Respondent

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CORAM:- R M SAVANT, J DATED :- 22^nd APRIL, 2013.

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ORAL ORDER

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1 The Writ Jurisdiction of this Court is invoked against the order dated 5-1-2012 passed by the Learned Joint Civil Judge Senior Division, Malegaon, by which order, the application for setting aside the exparte order and for being permitted to file the Written statement by the Petitioner herein i.e. the Defendant to the Suit came to be rejected.

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2 The Suit in question being Special Civil Suit No.44 of 2011 now numbered as Regular Civil Suit No.29 of 2012, has been filed for redemption of mortgage. The said Suit was before the Court of the Learned Civil Judge Senior Division but in view of the enhancement of pecuniary jurisdiction, the Suit came to be transferred to the Learned Civil Judge Junior Division, Malegaon. The Suit summons came to be issued on 4-52011 and the Petitioner/Defendant was served on 10-6-2011. An order to

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proceed exparte against the Defendant came to be passed on 14-7-2011 as no Written Statement was filed by him. On 9-9-2011 the application in question being Exhibit 15 for setting aside the order to proceed exparte and for taking the Written Statement on record came to be filed. The said application Exhibit 15 was opposed on behalf of the Plaintiff by filing a reply and it was the case of the Plaintiff that no case for extending the time for filing the Written Statement has been made out by the Defendant. The Trial Court has by the impugned order dated 5-1-2012 rejected the said application. The said rejection was on the ground that though the Court is vested with the discretionary power to accept the Written Statement even after the expiry of 90 days period, the same can only be done in special circumstances which are not made out in the instant case. The instant application according to the Trial Court did not make out any special circumstance for the Court to exercise discretion in favour of the Defendant. The Trial Court further observed that for a decision of the case on merits, the contention of the Defendant that his Written Statement is necessary cannot be accepted.

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4 The Learned Counsel appearing on behalf of the Petitioner would reiterate his case before the Trial Court for setting aside the exparte order and for being permitted to file his Written Statement. The Learned counsel

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would contend that the exparte order being passed on 14-7-2011 was immediately after the period of 30 days of the Writ of Summons being served on the Defendant. The Learned Counsel would contend that considering that the time to file Written Statement can be extended upto 90 days, the over lap is only of 3 or 4 days.

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5 Per contra, it is sought to be contended by Mr. Kasar the Learned Counsel appearing for the Respondent i.e. original Plaintiff that though the Petitioner has mentioned that he could not file the Written Statement because he was on medical leave but in fact he was on casual leave and therefore no indulgence can be shown to the Petitioner.

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6 Having heard the Learned Counsel for the parties, in my view, considering the facts and circumstances of the present case, the above Petition is required to be allowed. It is well settled by catena of judgments of the Apex Court as well as this court that Order VIII Rule 1 is directory and not mandatory and for just reasons the time to file the Written Statement can be extended. In the instant case as indicated above, the Written Statement was served on 10-6-2011 and immediately thereafter on 14-7-2011, the order to proceed exparte against him came to be passed.

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The said order was therefore passed prior to the 90 days period coming to an end. It is well settled that rules of procedure are a hand maid of justice

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and they have to be used to further the cause of substantial justice rather than to oppress it. In the facts and circumstances of the present case where

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the exparte order has been passed against the Defendant immediately after a period of one month of the Writ of Summons being served on the Defendant, the Trial Court ought to have allowed the Application Exhibit 15 for setting aside the order to proceed exparte against him and ought to have permitted the Defendant to file his Written Statement. Hence the impugned order is required to be quashed and set aside and accordingly quashed and set aside resultantly the order to proceed exparte against the Defendant would stand set aside and the Defendant is permitted to file his Written Statement. The same to be done within three weeks from date.

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5 Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs.

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(R M SAVANT, J)

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Bharat Chaturbhuj Naik v. Ranoji Chaturbhuj Naik

Case brief

What is this about?

What did the court decide?

Bharat Chaturbhuj Naik v. Ranoji Chaturbhuj Naik

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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