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2008(5) ALL MR 565
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SWATANTER KUMAR, C. J. & V. M. KANADE, J.
Saga Department Stores Ltd. - Appellant
Versus
Falak Home Developers Pvt. Ltd. - Respondent
Appeal No.272 of 2008
IN Notice of Motion No.1303 of 2008 IN Suit No.855 of 2001
Decided on : 10th July, 2008.
judicial discretion - scope of judicial discretion of a Court trying a Suit on the Original Side - Rules 89 to 91 and 265 of the High Court, Original Side, Rules, 1980 - Order VIII. Rules 1 and 10 of the Code of Civil Procedure, 1908 - Rule 88, Rule 89, Rule 91, Rule 265, Order 8, Rule 1, Order 8, Rule 10 - The judgment discusses the scope of judicial discretion of a Court trying a Suit on the Original Side with reference to Rules 89 to 91 and 265 of the High Court, Original Side, Rules, 1980 read with Order VIII. Rules 1 and 10 of the Code of Civil Procedure, 1908. It also highlights the settled principles of law that power of the appellate court to examine the legality, correctness or otherwise of a discretionary order is a limited one and unless such order was perverse, contrary to the statute or where the discretion had been exercised in patent violation to the settled percepts of law, Appellate Court may not interfere.
Fact of the Case:
The Appellants filed a Suit for specific performance of an Agreement dated 1st April, 1999 in relation to the property consisting of land admeasuring 1672.25 sq. mtrs. situate at 257, S. V. Road, Bandra (West), Mumbai and the construction raised' thereupon consisting of basement, ground and five upper floors. In addition to the relief for specific performance, the Appellants also claimed a declaration that termination of the said Agreement by the Respondents in the Appeal was illegal and there was a valid, subsisting and binding Agreement. The Writ of Summons was served on the Defendants in April, 2001, who in turn filed Vakalatnama in August, 2001. The Written Statement was not filed within time. The Respondents had taken out Chamber Summons Nos.ll of 2002 for inspection. This inspection related to the documents which had been given by the Plaintiffs in another proceedings between the parties and this Chamber Summons was later on withdrawn on 6th June, 2006. Number of cases were pending between the same parties. Thereafter the Appellants filed Notice of Motion No.1223 of 2007 on 30th March, 2007 praying that the Court should pass the judgment for want of Written Statement with costs. This Notice of Motion remained pending and the Respondents-Defendants on 3rd April, 2008 had taken out Notice of Motion No.D03 of 2008 praying for condonation of delay caused in filing the Written Statement and for taking the same on record. This application of the Respondents was contested by the Appellants vehemently.
Finding of the Court:
The Court held that the impugned order was not contrary to law and that the Appellate Court may not interfere with a discretionary order unless it was perverse, contrary to the statute or where the discretion had been exercised in patent violation to the settled percepts of law.
Issues: The issues involved in the case were the scope of judicial discretion of a Court trying a Suit on the Original Side with reference to Rules 89 to 91 and 265 of the High Court, Original Side, Rules, 1980 read with Order VIII. Rules 1 and 10 of the Code of Civil Procedure, 1908, and the applicability of the settled principles of law regarding the power of the appellate court to examine the legality, correctness or otherwise of a discretionary order.
Ratio Decidendi: The ratio decidendi of the judgment is that the power of the appellate court to examine the legality, correctness or otherwise of a discretionary order is a limited one and unless such order was perverse, contrary to the statute or where the discretion had been exercised in patent violation to the settled percepts of law, Appellate Court may not interfere.
Final Decision: The Appeal was dismissed, leaving the parties to bear their own costs.
SWAT ANTER KUMAR, C.J.:- A simple but question of some legal importance falls for consideration in the present Appeal. What is the scope of judicial discretion of a Court trying a Suit on the Original Side of this Court with reference to Rules 89 to 91 and 265 of the High Court, Original Side, Rules, 1980 (hereinafter referred to as "the Rules") read with Order VIII. Rules 1 and 10 of the Code of Civil Procedure, 1908? It is a settled canon of civil jurisprudence that wide discretion is vested with the Court and with the aid of its inherent powers Court can pass orders which may be necessary to achieve the ends of justice. The rules of procedural law are not to scuttle the rights of the parties at the threshold of the proceedings unless an indefeasible right is vested in the other side and it will cause great injustice or prejudice to that party. Exercise of such judicial discretion has to be in consonance with the settled principles of law, amongst which, it is also a settled principle of law that power of the appellate court to examine the legality, correctness or otherwise of a discretionary order is a limited one and unless such order was perverse, contrary to the statute or where the discretion had been exercised in patent violation to the settled percepts of law, Appellate Court may not interfere.
2. The argument raised by the Appellants in the present Appeal is that the learned Single Judge has passed the impugned order in exercise of discretionary power contrary to the specific provision of law as no special circumstances had been shown by the Defendant-Applicant, who had taken out Notice of Motion No.1303 of 2008, seeking condonation of delay in filing the Written Statement. We may refer to the facts giving rise to the present Appeal as under.
3. The Appellants in the Appeal filed a Suit for specific performance of an Agreement dated 1st April, 1999 in relation to the property consisting of land admeasuring 1672.25 sq. mtrs. situate at 257, S. V. Road, Bandra (West), Mumbai and the construction raised' thereupon consisting of basement, ground and five upper floors. In addition to the relief for specific performance, the Appellants also claimed a declaration that termination of the said Agreement by the Respondents in the Appeal was illegal and there was a valid, subsisting and binding Agreement. Obviously the Appellants had stated that they were willing and ready to perform their part of the contract and it was for the fault of the Respondents who were not discharging their responsibilities under the Agreement, his part could not be performed. The Writ of Summons was served on the Defendants in April, 2001, who in turn filed Vakalatnama in August, 2001. It is noticed in the impugned order that the same was misplaced from the Court record and fresh Vakalatnama was filed. The Written Statement was not filed within time. The Respondents had taken out Chamber Summons Nos.ll of 2002 for inspection. This inspection related to the documents which had been given by the Plaintiffs in another proceedings between the parties and this Chamber Summons was later on withdrawn on 6th June, 2006. Number of cases were pending between the same parties. Thereafter the Appellants filed Notice of Motion No.1223 of 2007 on 30th March, 2007 praying that the Court should pass the judgment for want of Written Statement with costs. This Notice of Motion remained pending and the Respondents-Defendants on 3rd April, 2008 had taken out Notice of Motion No.D03 of 2008 praying for condonation of delay caused in filing the Written Statement and for taking the same on record. This application of the Respondents was contested by the Appellants vehemently. In the affidavit in support of the Notice of Motion of the Respondents, it was stated that writ of summons was served upon the Respondents on 20th April, 200 1 and details of nearly 7 proceedings pending between the parties were given. Chamber Summons as taken out for inspection of the origi
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