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CASE NO.:

Appeal (civil) 2360 of 2008

PETITIONER:

Zolba

RESPONDENT:

Keshao and Ors

DATE OF JUDGMENT: 01/04/2008

BENCH:

TARUN CHATTERJEE & HARJIT SINGH BEDI

JUDGMENT:

JUDGMENT

O R D E R

REPORTABLE

CIVIL APPEAL NO 2360 OF 2008

(Arising out of SLP(C) No20062 of 2006

1. Leave granted.

2. In spite of due service, no one has entered

appearance on behalf of the respondents. Even at the

time of hearing of this appeal, the respondents had

failed to appear to contest the appeal.

3. This appeal is directed against the judgment and

order dated 11th of October, 2006 passed by a learned

Judge of the High Court of Judicature at Bombay,

Nagpur Bench in Writ Petition No.4019 of 2006 by

which the learned Judge had dismissed the writ petition

filed by the appellant for condoning the delay of 35

days in filing the written statement in a suit for partition

and separate possession of agricultural land filed by the

respondents.

4. We have heard the learned counsel appearing for

the appellant and also examined the impugned order of

the High Court as well as of the trial court and also the

application for acceptance of the written statement,

which was filed out of time.

5. Having heard the learned counsel for the appellant

and after considering the materials on record, we are of

the view that in the facts and circumstances of the

present case, the High Court ought to have condoned

the delay in filing the written statement under Order 8

Rule 1 of the Code of Civil Procedure (in short "the

CPC"), even if some delay was caused in filing the

same. The appellant was the defendant in the suit for

partition and separate possession of agricultural land

falling under Gat No.243 admeasuring 0.50 H.R.

situated at Village Mouza \026 Kojai and house No.139

situated at Village Gaijapur, Maharashtra (herein after

referred to as the ’suit properties’). The

plaintiffs/respondent Nos. 1 to 5 have also sought for a

declaration to the effect that a Will dated 6th of June,

2003 executed in favour of the respondent No.6

(petitioner No. 2 in the High Court) was illegal, null

and void and also for permanent injunction restraining

the appellant from making any construction over the

open land falling in house No.139. A perusal of the

record would show that the respondents in the pending

suit moved an application for grant of temporary

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injunction against the appellant. By an order dated 29th

of April, 2005, the Civil Judge, Junior Division,

Nagbhid granted temporary injunction in favour of the

respondents. Feeling aggrieved, the appellant has

preferred a misc. civil appeal before the District Judge,

Chandrapur and the same is now pending decision. The

appellant under bonafide belief and on instruction of his

counsel in the trial court could not file the written

statement as he was advised by his counsel that the

written statement could be filed after the decision of the

appeal pending before the district court. However,

when advised by his counsel, the appellant filed an

application for accepting the written statement on

condonation of delay. The learned Civil Judge, Junior

Division, Nagbhid rejected the said application for

condoning the delay and refused to permit the appellant

to file the written statement in view of the proviso to

Order 8 Rule 1 of the CPC. A review petition was filed

which was also rejected by an one line order. It is

against this order a writ petition was moved before the

High Court, which was also dismissed. Before we look

into the provisions under Order 8 Rule 1 of the CPC,

we need to record that the learned counsel appearing for

the appellant contended before us that the provisions for

filing the written statement under Order 8 Rule 1 of the

CPC are directory in nature and therefore, it was open

to the court to condone the delay in filing the writt