The central legal point established in the judgment is the entitlement to the benefit of the suspension of limitation as per the judgment of the Hon'ble Supreme Court, allowing the condonation of delay in filing the written statement.

JUDGMENT :

TUSHAR RAO GEDELA, J.

CM APPL. 19893/2023

1. Exemption allowed subject to all just exceptions.

2. The application stands disposed of.

3. CM(M) 645/2023 & CM APP No. 19892/2023 (Stay)

4. The petitioners challenge the order dated 18.02.2022 passed in CS No. 124/2020 titled Suravi Bose v. Mukesh Sharma, whereby an application filed under Order VIII Rule 1 read with Section 151 of the Civil Procedure Code, 1908 (hereinafter as “CPC”) and read with Section 5 of the Limitation Act, 1963 seeking condonation of delay in filing the written statement, was dismissed.

5. Mr. K.K. Sharma, learned senior counsel appearing for the petitioners submits that the summons of the suit were issued on 06.03.2020 and upon service, the petitioners/defendants had put in their appearance on 19.03.2021. Mr. Sharma submits that on such appearance learned Trial Court had granted time to file the written statement within the stipulated period of time. Learned senior counsel submits that however, the petitioner filed its written statement only on 03.08.2021 without the supporting application seeking condonation of delay in filing the written statement.

6. However, Mr. Sharma, learned senior counsel submits that subsequently an application under Order VIII Rule 1 read with Section 5 of Limitation Act was filed before the learned Trial Court. Though, sufficient reasons were furnished for the delay which had occurred in filing the written statement beyond the period of 120 days as per the Code of Civil Procedure, however, the learned Trial Court did not appreciate the said reasons and dismissed the said application by way of the impugned order.

7. Learned senior counsel submits that the learned Trial Court had itself noticed the judgment of the Hon'ble Supreme Court in Suo Moto Writ Petition (C) No. 3/2020 ‘In Re : Cognizance for Extension of Limitation’ whereby the Hon'ble Supreme Court had suspended the period of limitation commencing w.e.f. 15.03.2020 through till 28.02.2022. Learned senior counsel also submits that subsequently by way of the judgment of the Hon'ble Supreme Court in Prakash Corporates v. Dee Vee Projects Limited, (2022) 5 SCC 112 further 90 days w.e.f. 01.03.2022 was also granted. Thus, Mr. Sharma, learned counsel submits that the filing of the written statement on 03.08.2021 could have been condoned by the learned Trial Court.

8. Mr. Sharma, learned senior counsel submits that despite the clear law laid down by the Hon'ble Supreme Court on the said subject, the learned Trial Court passed the impugned order and as such the impugned order is unsustainable in law.

9. Per Contra, Mr. Siddharth Dutta, learned counsel appearing for the respondent/plaintiff opposes the said submissions of learned senior counsel.

10. Mr. Dutta submits that it is an admitted case of the parties that that the written statement was filed beyond the stipulated period of 120 days. In fact, learned counsel submits that the learned Trial Court in the impugned order had categorically noted that the written statement was filed after 138 days from the date of appearance of the petitioners/defendants. Learned counsel submits that during the window period there was no order of the Hon'ble Supreme Court protecting litigants suspending the period of limitation.

11. On that basis, learned counsel submits that the impugned order is sustainable in law and the petitioners/defendants cannot be granted any liberty to file the written statement.

12. This Court has considered the rival contentions of the parties as also perused the impugned order placed on record.

13. At the outset, this Court observes that though the learned Trial Court considered the judgment of the Hon'ble Supreme Court in Suo Moto (supra), however, has completely overlooked the fact that subsequently by the order dated 08.03.2021 of the Hon'ble Supreme Court in the same writ petition, the period commencing from 15.03.2020 through atleast till 28.02.2022, the period of limitation was suspended in support of all petitions