The main legal point established in the judgment is that the time limit for filing a written statement under the Civil Procedure Code should be treated as directory, and the court should balance the interests of the parties and decide the dispute on its merits.

JUDGMENT

MANISH PITALE,J.

1. By this writ petition, the Petitioner has challenged order dtd. 7/9/2021 passed by the Court of Ad-hoc Senior Civil Judge, Mapusa, whereby an application for condonation of delay in filing written statement has been dismissed.

2. The Respondent in the present case has filed a suit for declaration and permanent injunction against the Petitioner. On 22/10/2016, the Petitioner was served with summons in the said suit and as per the relevant provision of law, the extended time for filing written statement expired on 18/1/2017.

3. On 17/2/2017, the Petitioner filed an application for rejection of plaint and on the same day filed an application for extension of time to file written statement. The roznama shows that the application for extension of time to file written statement was merely kept in the file of the proceedings and no specific order was passed thereon.

4. On 31/10/2019, the application for rejection of plaint was dismissed and the roznama shows that the case was adjourned to 17/12/2019, for filing of written statement. On the said date, an application was moved on behalf of the Petitioner seeking time to file written statement on the ground of unavailability of the Petitioner. On the same day i.e. 17/12/2019, the Court below rejected the application, taking note of the fact that the time to file written statement was already over. The Court adjourned the case to 15/2/2020. On this day, the Petitioner moved an application for condonation of delay in filing written statement, inter alia, contending that when the Petitioner intended to challenge the order dtd. 17/12/2019, it was advised to file the application for condonation of delay in filing written statement and to place the written statement on record before the Court below.

5. By the impugned order dtd. 7/9/2021, the Court below has dismissed the application for condonation of delay in filing the written statement on the basis that sufficient ground was not made out for condonation of delay.

6. Aggrieved by the said order, the Petitioner approached this Court by filing the present writ petition, wherein notice was issued for final disposal returnable on 16/12/2021. The Respondent has entered appearance through Counsel.

7. Heard learned Counsel for the respective parties and perused the material on record.

8. Mr. Raghunandan, learned Counsel appearing for the Petitioner submits that the Court below adopted a hyper-technical approach in the matter and by placing emphasis on procedural aspects of the matter, ignored substantial justice to be done between the parties. It was submitted that in the absence of the written statement on behalf of the Petitioner, there would be no pleadings on record due to which the Petitioner would not be able to lead evidence and the Respondent would have the advantage of the suit being decided in a one-sided manner. It was submitted that the Hon'ble Supreme Court held in the cases of Kailash v. Nanhku (2005) 4 SCC 480 and Salem Advocate Bar Association, Tamil Nadu v. Union of India (2005) 6 SCC 344, laid down that the period of 90 days for filing written statement was directory and not mandatory. On this basis, it was submitted that the facts in the present case sufficiently explained that the Petitioner was entitled to place the written statement on record, so that the suit could proceed on merits.

9. It was submitted that the roznama shows that on 31/10/2019, after dismissal of the application for rejection of plaint, the Court below itself had adjourned the case for filing of written statement. Therefore, the delay in filing the written statement ought to be calculated from the said date. Since the Petitioner did file the application for condonation of delay along with the written statement on 15/2/2020, the delay was about 108 days, although it was erroneously mentioned in the application as 138 days. It was submitted that the explanation given in the application for condonation of delay was not considered in