JUDGMENT :

N.V.ANJARIA, J.

Heard learned advocate Mr.Udit Vyas for the petitioner and learned advocate Mr.Nandish Thackar for the contesting respondent.

2. By order dated 23.7.2021, 3rd Additional Senior Civil Judge, Surat passed below Exhibit 19 in Commercial Suit No.478 of 2021, refused the permission to the petitioner- original defendant No.4 to file its written statement on the ground that the same was beyond the period of limitation. The respondent No.1- original plaintiff instituted Commercial Suit No.225 of 2020 for the relief of partition and dissolution of the partnership firm as also for declaration of permanent injunction.

3. The plaintiff on one hand and defendant Nos.2 and 3 on the other hand, were real brothers running the business in the name of M/s. Mohan Silk Corporation. The plaint contained several reliefs including dissolution of the partnership firm, distribution of shares of the petitioner Society held by the firm, declaration as regards ownership of the shop, seeking for damages and for injunction in respect of creating third party rights in the shop in question. It is not necessary to elaborate the suit controversy nor it is needed to mention the prayers in detail.

3.1 The suit in the present case was instituted on 3.2.2020. The summons of the suit was served to the applicant Society on 24.2.2020. The period of thirty days therefore would expire on 24.3.2020. The petitioner Society filed its written statement before the Court below on 5.11.2020. These dates are not in dispute.

3.2 Special provisions came to be engrafted in the statute with in regard to the proceedings of commercial suits including in respect of the limitation to file written statement. The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 came into force on 23.10.2015 bringing certain amendments to the Code of Civil Procedure. In Order V, Rule 1, sub-rule (1), for the second Proviso, the following Proviso came to be substituted:

“Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other days, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred and twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record.”

3.2.1 Similarly in Order VIII Rule 1, new Proviso was inserted by way of substitution:

“Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred and twenty days from the date of service of summons and on expiry of one hundred and twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record.”

3.2.2 This was re-emphasized by re-inserting yet another proviso in Order VIII Rule 10 CPC, reading as under:-

“Procedure when party fails to present written statement called for by Court.-

Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on pronouncement of such judgment a decree shall be drawn up. Provided further that no Court shall make an order to extend the time provided under Rule 1 of this Order for filing of th