Back
In the High Court of Bombay at Goa
THE HONOURABLE MR. JUSTICE R.M. SAVANT
Shri Somnath Gokuldas Xete Shirodkar & Others
Versus
Shri Atchut Roghunath Xete Shirodkar & Others
Writ Petition No.444 of 2003
Decided on : 16-11-2009
Civil Procedure Code, 1908 - Order VIII, Rule 1 - Suit for declaration and cancellation of sale deeds - Summons served on some defendants - Absence of counsel for petitioners - defendants on date fixed for hearing of suit - Ex parte order passed - Setting aside of sought by petitioners - Opposed by respondents-plaintiffs - Ex parte order set aside by trial Court refusing to set aside order of no written statement - Challenged - Conduct of petitioners - Not as callous or negligent as contended by respondents - Provisions of Order VIII, Rule 1 directory in nature not mandatory - Impugned order set aside - Petitioners allowed to file their written statement - Petition allowed. - Court have heard the rival contentions. In the instant case it is pertinent to note that some of the defendants i.e. defendant Nos. 1(a) to 1(d), 2 to 16 have been served on 2.11.2002 and the ninety days period was to come to an end on 1.2.2003. The defendant Nos. 17, 18 and 25 were served on 1.11.2002 and therefore the ninety days period had come to an end on 30.1.2003. The defendant Nos. 19, 20, 23 and 24 were served on 14.11.2002 and the ninety days period in respect of the said defendants had to come to an end on 12.2.2003. It would be pertinent to note that the suit was kept for hearing on 30.1.2003, therefore, in respect of all the three sets of defendants, the said date was before the ninety days period had expired. Unfortunately for the petitioners, though the said date was very vital for them, the Advocate engaged by them did not remain present on the said date and therefore the petitioners were marked ex parte as also a no written statement order came to be passed against them. Since an ex parte Order came to be passed against them, the petitioners could not file their Wakalatnama in the said suit Wakalatnama was filed by some of the defendants only on 18.2.2003, along with the application filed for setting aside the orders. The non filing of the Wakalatnama by the petitioners therefore can be attributed to the fact that they were marked ex parte. It would also be pertinent to note that some of the defendants were not even served which defendants have been referred to in the earlier part of this order. The said defendants suo motu, filed their Wakalatnama on 20.2.2003 on acquiring knowledge of the above suit being filed against them. Therefore one can see that there was confusion as regards the service of writ of summons on the defendants. Something, therefore can be said in favour of the petitioner defendants as all of them were not served even when the said ex parte Order came to be passed against them on 30.1.2003. The conduct of the petitioners is not as callous or negligent or indolent as is sought to be contended by the counsel for the respondents. The petitioners were handicapped by the fact that on the crucial day i.e. on 30.1.2003, they went unrepresented as their Lawyer did not remain present for the reasons mentioned earlier in this Order.
In so far as the provisions of Order VIII, Rule 1 are concerned, it is well settled that the provisions have been held to be directory and not mandatory. The Apex Court has held that the said Rule being a Rule of procedure cannot be construed strictly as procedure is the handmaiden of justice. And the interpretation has to be one which furthers the cause of justice. The Division Bench of this Court in the judgment of Chintaman Sukhdep Kaklij v. Shivaji Bhausaheb Gadhe and others, (supra) has gone on to hold that this Court is not powerless in extending the time for filing the written statement if exceptional circumstances so warrant. In the instant case, the conspectus of facts as disclosed above namely that the petitioners’ Advocate had remained absent on 30.1.2003 on account of which, the petitioners were marked ex parte. Secondly, that some of the defendants who are the petitioners above named were not served till even the said date i.e. 30.1.2003. In Courts view, the facts and circumstances of the present case warrants that this Court, in the interest of justice should extend the time for filing the written statement.
In that view of the matter, the impugned order dated 1.7.2003 is set aside to the extent, it disallows the application of the petitioners seeking permission to file their written statement. The petitioners are accordingly allowed to file their written statement.
The Petitioners herein take exception to the Order dated 01.07.2003, passed by the learned Civil Judge, Junior Division, 'C' Court, Margao, by which order the application filed by the Petitioners for taking their written statement on record, has been rejected.
2. The facts necessary for adjudication of the matter are stated thus:
The Petitioners herein are the original Defendant nos. 1(a) to 1(g), 2 to 20, 23 and 24 in the suit filed by the Respondent nos. 1 and 2 herein for declaration and cancellation of Sale Deeds dated 29.01.1983, 09.12.1994 and 09.01.1995. In so far as the Defendant nos. 1(a) to 1(d), 2 to 16 are concerned, they were served with the suit summons on 02.11.2002. In so far as the Defendant nos. 17, 18 and 25 are concerned, they were served with the suit summons on 01.11.2002 and so far as the Defendant nos. 19, 20, 23 and 24 are concerned, they were served with the suit summons on 14.11.2002. The Defendant nos. 1(e), 1(f) and 1(g) and Defendant nos. 21 and 22 were not served with the suit summons, however, they filed their Wakalatnama on 18.02.2003, coming to know of the suit being filed against them as the parties above named are related to each other.
3. The suit was placed for hearing on 30.01.2003, on which date, on account of the absence of the Advocate for the Petitioners, the Petitioners were marked exparte and a no written statement Order was also passed and the suit was fixed for further hearing thereafter. The Petitioners moved an application on 17.02.2003 for setting aside the said Order of exparte against the Petitioners as also the order of no written statement. In the said application it was, inter alia, mentioned that the Petitioners' Advocate one Shri L. P. Shirodkar, whom they had appointed, had asked one of his colleagues to appear in the matter on 30.01.2003, however, the said colleague of the Petitioners' Advocate reached the Court dealing with the said suit late, as a result of which, the said exparte and no written statement Order came to be passed against the Petitioners. It was further averred in the said application that the absence of the Petitioners was not on account of any negligence or deliberate but was on account of circumstances which were beyond their control.
4. The said application was opposed by the Respondent nos. 1 and 2 herein, who are the original plaintiffs. It was contended in the said reply that the Petitioners were obliged to file their written statement within thirty days as per Order VIII Rule 1 of the Civil Procedure Code and, in the application, the Petitioners have not mentioned any specific ground as to why they could not file their written statements or as to why they could not appear on 30.01.2003.
5. The said application was considered by the Trial Court and by the impugned Order, the Trial Court set aside the exparte Order passed against the Petitioners, however, has refused to set aside the no written statement Order which has been passed against them. As indicated above, it is against this Order the Petitioners have filed the instant Petition.
6. Heard the learned Counsel for the parties.
7. Shri Pangam, the learned Counsel for the Petitioners, submitted that in view of the fact that the learned Advocate for the Petitioners did not remain present on 30.01.2003, which was the date on which the suit was kept for hearing, that the said exparte and no written statement Order came to be passed against the Petitioners, as otherwise, the Petitioners were intending to seek time for filing of their written statement. It was further contended that though the application has been filed beyond the period of thirty days in respect of some of the Defendants, the said application has been filed much before the ninety days period had come to an end. It is further contended by Shri Pangam, that some of the Defendants i.e. Defendant nos. 1(e) to 1(g), 21 and 22, have not even been served with the suit summons but the said Defendants have filed their Wakalat
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
