This court quashed a trial court order accepting a written statement filed 15 months after summons. The writ court held the trial court failed to record findings under Order VIII Rule 1 CPC and remanded the matter for a fresh hearing.
Impugned order dated 14.9.2023 quashed; matter remanded to trial court to decide objection afresh.
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2024:BHC-GOA:1324
26-WP-433-2024.DOC
Vinita
IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.433 OF 2024 WITH
CIVIL APPLICATION NO. 51 OF 2024 IN
WRIT PETITION NO. 433 OF 2024.
Mr. Melwin Viegas, Advocate for the petitioners. Mr John A. Lobo, Advocate for the respondents.
Page 1 of 5 16th August, 2024.
26-WP-433-2024.DOC
CORAM: BHARAT P. DESHPANDE, J Dated: 16th August, 2024
ORAL JUDGMENT
1. Rule. Rule is made returnable forthwith.
2. Matter is taken up for final disposal at the admission stage with consent of the parties.
3. Petition is filed challenging the order dated 14.9.2023 passed by the learned trial Court thereby allowing the written statement to be taken on record after a period of 15 months from the date of service of summons on the defendants/ respondents.
4. Mr Viegas appearing for the petitioners submits that petitioners filed a suit and accordingly summons were issued. Suit summons were served on 7.9.2024. Initially time to file a written statement was extended. However, on 16.12.2021 an application was filed for further extension of time to file written statement on the ground that another suit is pending between the same parties and that present suit is required to be stayed. Stay application was filed and it was prayed that time to file a written statement be extended beyond 30 days from the date of disposal of the application for stay.
Page 2 of 5 16th August, 2024.
26-WP-433-2024.DOC
5. Mr Viegas, submits that this application was not even considered and only an order was passed on it “Filed”. He submits that copy of this application was not served on the plaintiffs.
6. Mr Viegas, submits that subsequently and after a period of 15 months, defendants suddenly presented a written statement on 2.2.2023. Plaintiff objected to filing of such a written statement by filing an application which is dated 6.2.2023.
7. Learned trial Court by the impugned order dated 14.9.2023 simply rejected the contention of the plaintiff on the ground that earlier application was filed on 16.12.2023 which was never objected by the plaintiff.
8. Mr Viegas submits that Order VIII Rule 1 of CPC mandates that a written statement is required to be filed within 30 days which could be extended up to 90 days. He would further submit that since the application dated 16.12.2021 was simply filed and no extension was granted, it was wrong on the part of the learned trial Court to accept the written statement on 2.2.2023.
9. Mr Lobo appearing for the respondents submits that another suit between the parties is pending and accordingly an order was passed to stay the present suit. However, along with stay application,
Page 3 of 5 16th August, 2024.
26-WP-433-2024.DOC
present application was filed for granting time to file a written statement beyond 30 days from the date of decision of the stay application.
10. Mr Lobo would submit that even otherwise reply filed by the respondents to the objections raised by the plaintiffs gives sufficient reasons as to why the written statement was not filed earlier.
11. The impugned order first of all nowhere decides the objection raised by the petitioner in connection with the time limit granted under Order VIII Rule 1 of CPC. It is for the defendants to explain as to why the written statement is not filed within time. Court is not entitled to accept the written statement beyond 90 days without giving any sufficient explanation and without recording its findings as to why such a written statement is required to be taken on record. Simply because the application was filed on 16.12.2021 with an order “Filed” and that plaintiff did not object to it, cannot be a ground for extending such a period. Duty cast on the Court to comply with the provisions of Order VIII Rule 1 of CPC and that too by recording reasons on an application filed by the defendants for extension of time beyond 90 days.
12. Since no such finding is given by the trial Court on the objection raised by the petitioners/plaintiffs, matter needs to be
Page 4 of 5 16th August, 2024.
26-WP-433-2024.DOC
remanded to decide the objection raised by the plaintiffs/petitioners, in accordance with provision of Order VIII Rule 1 of CPC.
13. Impugned order is therefore quashed and set aside. Matter is remanded to the trial Court with a direction to decide the objection raised by the petitioners dated 6.2.2023 afresh and by giving opportunity to the other side.
14. Rule is made absolute. Petition stands disposed of in the above terms and pending applications if any stand disposed of.
15. Parties to act on the duly authenticated copy of this order.
BHARAT P. DESHPANDE, J .
Page 5 of 5
16th August, 2024.
2 issues framed by the court
Whether the trial court erred in accepting a written statement filed beyond the 90-day limit without recording sufficient reasons or findings.
Whether the non-objection to a time-extension application by the plaintiff automatically grants the extension under Order VIII Rule 1 CPC.
1 provisions across 1 enactments
Vinita Prashant Bhandari and another
Samir D. Kamat and another
BHARAT P. DESHPANDE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
