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2025 Supreme(Online)(Bom) 5876
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO.4761 OF 2025 IN SUIT NO.393 OF 2022
Gautam Dham Co-operative Housing Society Limited Through its Secretary having its office at S. No.238A, Hissa No.6 (Part), 368-A, Bajaj Road, Dhunbaiwadi, Ville Parle (W), Mumbai - 400 056. ...Applicant/ Org. Defendant No.1
IN THE MATTER BETWEEN:-
1) Funds and Properties of Parsi Panchayat, Bombay, having its registered address at 209, Dr. Dadabhai Naoroji Road, Fort, Mumbai 400 - 001.
2) Armaity Rustom Tirandaz, Age : 75 years, Occ. : Social Worker & Physiotherapist.
3) Noshir Homi Dadrawala, Age : 47 years, Occ. : Service.
4) Kersi Jamshed Randeria, Age : 63 years, Occ. : Service.
5) Viraf Dinshav Mehta, Age : 41 years, Occ. : Service.
6) Xerxes Vispi Dastur, Age : 50 years, Occ. : Chartered Account.
All present Trustees of Funds and Properties of the Parsi Panchayat Bombay, Having their registered address at 209, Dr. Dadabhai Naoroji Road, Fort, Mumbai - 400 001. …..Plaintiffs
Versus
1) Gautam Dhan Co-operative Housing Society Limited, Through its Secretary having its office at S. No.238A, Hissa No.6 (Part), 368-A, Bajaj Road, Dhunbaiwadi, Ville Parle (W), Mumbai - 400 056.
2) Shri Kaikhushroo F. Dubash, Firuze Aara Apartments, Opp. Secretariat, Fort, Mumbai – 01.
3) M/s. Gautam Associates, 1210/1211, Dalamal Tower, Nariman Point, Mumbai - 400 021. ...Defendants
Mr. Rohaan Cama a/w Mr. Kyrus Modi, Mr. Pankaj Pandey & Mr. Smit Nagda for the Applicant/Defendant No.1.
Mr. Smith Colaco i/by Mulla & Mulla And Cragie Blunt & Caroe for the Plaintiffs/Respondents.
CORAM : JITENDRA JAIN, J.
RESERVED ON : 19th September 2025
PRONOUNCED ON : 20th September 2025
For the Appellants/Petitioners: Mr. Cama
For the Respondents: Learned counsel for the Plaintiffs
The limitation period for filing a written statement commences upon the service of the summons accompanied by the plaint. Administrative lapses in a legal counsel's office may constitute 'sufficient cause' for condonation of delay to prevent prejudice to a litigant who has otherwise remained vigilant.
Headnote:(A) Code of Civil Procedure, 1908 - Order VIII Rule 1 - Bombay High Court (Original Side Rules), 1980 - Rules 84, 87, and 88 - Condonation of delay - Written statement - Limitation period - Commencement of period - Service of summons and copy of the suit papers - Sufficient cause - In non-commercial suits, the limitation period for filing a written statement commences from the date of service of the writ of summons accompanied by the copy of the plaint, rather than the date of filing an appearance or legal authorization document. Rule 84 pertains to proof of service and does not imply that filing an appearance constitutes service of summons for limitation purposes, particularly when the defendant was not in receipt of the suit papers. (Paras 12, 13, 15, and 19)
(B) Condonation of delay - Procedural lapse - Sufficient cause - Litigants should not suffer due to the inadvertent lapses of their legal representative’s office, provided the applicant remains vigilant and takes necessary steps upon discovery of the oversight. A delay of 75 days, attributed to an administrative error in the legal counsel’s office, in the context of a society managed by honorary members, constitutes 'sufficient cause' for condonation. (Paras 21, 22, and 23)
Facts of the case:
The applicant filed an application seeking condonation of a 75-day delay in filing a written statement in a non-commercial suit. The applicant argued that the delay was due to the inadvertent failure of their advocate’s staff to communicate the service of the writ of summons. The opposing party contended that the limitation period should be calculated from the date an appearance/authorization document was filed, arguing that the service was deemed complete upon such filing under local procedural rules.
Findings of Court:
The court held that the objective of requiring a written statement is to allow a defendant to respond to the case made against them, which is impossible without service of the plaint. The court found that the local rules concerning proof of service do not create a legal fiction for the commencement of limitation for filing a defense. It further observed that administrative lapses by counsel should not prejudice a party, especially a non-profit entity managed by volunteers, and granted the prayer for condonation.
Issues: The primary issues were: (i) the starting point for calculating the limitation period for filing a written statement under the relevant civil procedure code when multiple local procedural rules are involved, and (ii) whether an administrative oversight at the counsel's office constitutes 'sufficient cause' for the condonation of delay.
Ratio Decidendi: Limitation under the code commences only upon the service of the summons and a copy of the plaint, as this enables the defendant to formulate a defense. Local procedural rules regarding proving service are distinct from the substantive computation of limitation. Procedural delays by an advocate, when discovered and rectified with diligence by the litigant, satisfy the threshold for 'sufficient cause' for condonation, ensuring that disputes are decided on merit rather than technical default.
Result: Interim application allowed; delay condoned.
| Table of Content |
|---|
| 1. procedure and arguments regarding condoning delay in written statement. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8) |
| 2. identifying limitation and sufficient cause issues in proceedings. (Para 9 , 10 , 11) |
| 3. plaint service establishes limitation period for written statement. (Para 12 , 13 , 14 , 15 , 16) |
| 4. distinguishing precedents regarding summons and limitation start date. (Para 17 , 18 , 19 , 20) |
| 5. advocate's professional lapse constitutes sufficient cause for delay. (Para 21 , 22 , 23 , 24) |
| 6. order allowing the application for condonation of delay. (Para 25) |
JUDGMENT:-
1. This Application is taken out by the Original defendant No.1, seeking condonation of 75 days delay in filing written statement in a non-commercial suit.
Submission of Defendant No.1 :-
2. Mr. Cama, learned counsel appearing for the defendant submits that writ of summons was served on Defendant No.1 on 08.03.2023 and as per Order V Rule 1 of the Code of Civil Procedure, 1908 (CPC) they were supposed to file written statement within 30 days, which expired on 07.04.2023. However, the written statement was filed on 21.06.2023, resulting in delay of 75 days starting from 08.04.2023. He further relied on paragraph 2 of the present application and stated that the delay is on account of the office of the Advocate who received the writ of summons, but the Advocate’s office inadvertently did not inform the Advocate about the said writ of summons. Thereafter, on inquiry by the office bearers of defendant No.1, the Advocate inquired with his staff and became aware that the writ of summons had been served on 08.03.2023. Thereafter, the Advocate took immediate steps in drafting the written statement, getting it approved by the office bearers of defendant No.1 and held conference for finalization of the same. He, therefore, submitted that on account of sufficient cause, there has been a delay and the Defendant No.1 has not gained by the said delay. He, therefore, prayed for Interim Application being allowed in terms of prayer clause (a).
Submissions of the Plaintiff:-
3. Learned counsel for the Original Plaintiffs vehemently opposed the present application. He relied upon the decision in the case of Nitin Mahadeo Jawale & Ors. vs. Bhaskar Mahadeo Mutke, (1 2024 SCC OnLine 3468) and submitted that, trend of blaming the Advocate has been deprecated in such matters and prayed that the reason given should not be accepted by this Court.
4. The learned counsel for the Plaintiffs placing reliance on Rule 84 of Bombay High Court (Original Side Rules), 1980 stated that vakalatnama on behalf of Defendant No.1 was filed on 11.06.2021 and on a reading of Rule 84, the writ of summons is deemed to have been served on 11.06.2021 and if this date is taken, then the delay will be of more than 700 days. The learned counsel fairly brought to the notice of the Court that there is a conflict between Rules 84 and 87 of the Original Side Rules, 1980. Rule 87 provides for dismissal of the suit if the writ of summons is not served within six months from the date of filing of the plaint. He, therefore, submitted that the time limit for filing written statement under Order VIII Rule 1 of Civil Procedure Code, 1908 will start from 11.06.2021.
5. The learned counsel for the Plaintiffs further submitted that in case of multiple modes of service provided by the Original Side Rules, 1980, date on which the first mode was exercised should be considered as starting date for limitation. In the instant case, he submitted that although the writ of summons was served on Defendant No.1 on 08.03.2023, since the vakalatnama was filed on 11.06.2021, the starting date for limitation would be 11.06.2021. For this proposition, he relied upon the decision of the Division Bench of this Court in the case of Meena Ramesh Lulla and others vs. Omprakash A. Alreja & Ors., (2 2011 SCC OnLine Bom. 2147)
6. On a query being raised by the Court, the learned counsel for the Plaintiffs replied that the copy of the plaint was
