Liberal approach in construing sufficient cause for condonation of delay and the importance of deciding matters on merits rather than technical grounds.

JUDGMENT :

ASHOKKUMAR C. JOSHI, J.

1. RULE.

2. This petition under Article 227 of the Constitution of India is filed by the petitioners-original defendant Nos. 3 and 4 with a prayer to set aside the order dated 6.2.2020, passed below Exh.44 in Special Civil Suit No. 447 of 2010 by the learned 3rd Additional Senior Civil Judge, Surat. By the said application Exh.44, the petitioners-original defendant Nos. 3 and 4 had prayed for to open their right to file written statement, which was closed on 1.5.2012.

3. Despite due service, the respondents have chosen not to appear before this Court, leaving no option but to proceed with the matter Ex-parte.

4. Heard learned advocate Mr. Nirad Buch for the petitioners. He submitted that the respondent No. 1 has filed the Special Civil Suit No. 447 of 2010 in the concerned Civil Court at Surat for declaration and permanent injunction, wherein, pursuant to the summons issued, the petitioners filed their appearance through their advocate on 14.12.2010. However, thereafter, there was no instructions from the learned advocate representing the petitioners before the learned Court below with regard to the filing of written statement and therefore, written statement could not be filed by the petitioners in the suit. It is submitted that the petitioners could not filed the written statement only because of the learned advocate did not informed the petitioners about the same nor he took any steps in that regard and accordingly, the right of the petitioners to file the written statement came to be closed on 1.5.2012. He submitted that the respondent No. 1 filed his affidavit in lieu of examination in chief and a copy of the same served upon the petitioners by the R.P.A.D. and only thereafter the petitioners learnt about the none filing of the written statement by their advocate. He submitted that in the aforesaid facts and circumstances, delay of 3330 days caused in filing the written statement.

5. He submitted that the learned trial Judge has failed to appreciate the fact that for the in action on the part of the advocate representing the case of the petitioners, the legitimate right of the petitioners to defend the suit cannot be snatched away. He submitted that as soon as the petitioners came to know about the status of the case, they acted upon, hired another advocate to represent their case and filed necessary application. Accordingly, the learned trial Court has committed a material irregularity in passing the impugned order by not allowing the petitioners to file their written statement and by not exercising the powers conferred by Order VIII Rule I of the Civil Procedure Code, 1908 (CPC).

6. Learned advocate for the petitioners further submitted that the learned trial Court has taken a very hyper technical view of the matter and disallowed the application, otherwise, the petitioners have a good case on merits.

7. Thus, making above submissions it is urged that this petition may be allowed in the larger interest of justice by setting aside the impugned order and further to allow the petitioners to file their written statement.

8. Regard being had to the submissions advanced and considering the material placed on record as well as the impugned order passed below Exh.44 in Special Civil Suit No. 447 of 2010, it appears that the respondent No. 1 has filed the aforesaid suit for declaration for permanent injunction in which the petitioners are arrayed defendant Nos. 3 and 4. Undisputedly summons issued by the learned trial Court was served upon the petitioners on 14.12.2010 pursuant to which, the petitioners engaged an advocate to represent their case before the learned trial Court. However, no written statement was filed on behalf of the petitioners resulting into closure of the right of the petitioners to file the written statement by virtue of an order dated 1.5.2012. It is the case of the petitioners that the learned advocate representing their case before the learned trial Court had not informed the pet