Extension of time for filing a written statement cannot be granted as a matter of routine and must be allowed only in exceptional circumstances beyond the control of the defendant.

JUDGMENT :

Sanjay Kishan Kaul, J.

IA No. 14229/2007 (Under Order 9 Rule 6 CPC)

IA No. 14230/2007 (Under Section 5 of the Limitation Act, 1963)

1. These two applications have been filed for recall of the order dated 9.10.2007 in terms whereof the right of the defendants to file the written statement stood closed. Summons were served on the defendants on 4.7.2007 and no written statement had been filed despite the lapse of ninety (90) days, such right was closed on 9.10.2007. The plaintiffs were directed to file the affidavits of examination-in-chief. The affidavits have been filed by the plaintiffs.

2. The only ground stated in the application is that the defendants were not aware that the written statement had to be filed within thirty (30) days. Ignorance of law can hardly be a defense especially when the defendants are advised by an advocate. In fact, no written statement has been filed even with these applications of the defendants, which is proposed to be placed on record.

3. These applications have now been filed at the stage when the matter has come up for final hearing.

4. The Supreme Court has cautioned that extension of time whether beyond thirty (30) days or ninety (90) days cannot be granted as a matter of routine. There must be special circumstances especially when the delay is even beyond ninety (90) days. In this behalf a reference may be made to the observations made by the Supreme Court in Kailash Vs. Nanhku and Others, AIR 2005 SC 2441. The relevant portion in this behalf is as under :

45. We sum up and briefly state our conclusions as under:

...

(v) Though Order VIII, Rule 1 of the CPC is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure there from would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case.

(emphasis supplied)

5. Dismissed.

CS (OS) No. 967/2007

6. The plaintiffs have filed a suit for permanent injunction restraining infringement of copyright, delivery up, rendition of accounts of profits, damages and costs against the defendants on account of the use by the defendants of counterfeited/unlicensed versions of the software of the plaintiffs' MICROSOFT WINDOW XP Professional Version 2002 and MICROSOFT WINDOWS 2000.

7. The suit has been instituted through Mr. Anand Banerjee, authorised signatory and the letter of authority in his favor by plaintiff No. 1 and the power of attorney issued by plaintiff No. 2 have been proved as Exhibits P-1 and P-2 respectively. It is the case of the plaintiffs that since the year 1975, the plaintiff No. 1 is engaged in the development, manufacture, licensing and support of a range of software products for various computing devices including the aforesaid softwares. plaintiff No. 2 is wholly owned by plaintiff No. 1 and is carrying out the marketing in India.

8. The witness has proved the certified copies of the original copyright certificates for the software programmes as Exhibits P-3 to P-8 and claims that on receiving information about the defendants' infringing activities, inve