Case Note & Summary
The present case arises out of a suit filed by the Plaintiffs, Joana Rose Philomina Miranda and others, against the Defendant, Western Pre Fab Pvt. Ltd., seeking a declaration that a Conveyance Deed dated 16th June 1994 was void and not binding on them. The suit was originally filed on 24th July 2006 as S.C. Suit No.4768 of 2007 (later renumbered as Suit No.895 of 2007) in the Bombay High Court. The Plaintiffs did not file any interim application at the time of filing. On 15th May 2010, there was a change in the directors of the Defendant company, with the old directors resigning and the new directors (Bilakhiya family) taking over. On 11th August 2010, the Prothonotary and Senior Master passed an order directing the suit to proceed without the written statement of the Defendant. In 2012, due to enhancement of pecuniary jurisdiction of the City Civil Court, Bombay, the suit was transferred from the High Court to the Bombay City Civil Court. The suit was listed on 4th December 2012, 23rd July 2013, and 31st July 2013, but none of the parties appeared. On 3rd August 2013, the suit was dismissed for non-prosecution due to the absence of the Plaintiffs and their advocates. On 27th September 2013, the Plaintiffs filed Miscellaneous Application No.69 of 2013 to set aside the dismissal and restore the suit, which was allowed on 8th April 2014. On 24th July 2014, soon after acquiring knowledge of the no written statement order, the Defendant filed a Notice of Motion (later converted to Interim Application No.1508 of 2023) seeking to set aside the order dated 11th August 2010 and to condone the delay of approximately seven years in filing the written statement, and to permit the Defendant to file its written statement dated 17th July 2014. The Court considered the submissions of both sides. The Defendant argued that the new directors were not aware of the suit proceedings and that the order was passed without giving them an opportunity. The Plaintiffs opposed the application, contending that the delay was inordinate and unexplained. The Court held that the Defendant had sufficient cause for the delay, as the new directors took over only in May 2010 and the order was passed in August 2010. The Court also noted that the Plaintiffs had not been diligent, as they did not file any interim application and the suit was dismissed for non-prosecution. The Court allowed the application, set aside the order of the Prothonotary, condoned the delay, and permitted the Defendant to file the written statement subject to payment of costs of Rs. 25,000 to the Plaintiffs.
Headnote
A) Civil Procedure - Written Statement - Condonation of Delay - Order VIII Rule 1, Order VIII Rule 10, Section 151 Code of Civil Procedure, 1908 - The Defendant sought to set aside the order dated 11th August 2010 passed by the Prothonotary directing the suit to proceed without written statement and to condone the delay of approximately seven years in filing the written statement. The Court held that the Defendant had sufficient cause for the delay as the new directors took over the company only in May 2010 and were not aware of the suit proceedings. The Court also noted that the Plaintiffs had not filed any interim application and the suit was dismissed for non-prosecution at one stage, indicating lack of diligence. The Court allowed the application, set aside the order, and permitted the Defendant to file the written statement subject to costs of Rs. 25,000. (Paras 1-10) B) Civil Procedure - Principles of Natural Justice - Right to be Heard - Order VIII Rule 10 Code of Civil Procedure, 1908 - The Court emphasized that the Defendant should not be shut out from contesting the suit on merits. The order of the Prothonotary was passed without giving the Defendant an opportunity to file a written statement. The Court held that the interests of justice require that the Defendant be allowed to file its written statement, especially since the Plaintiffs would not be prejudiced as the suit is yet to be set down for trial. (Paras 6-9)
Issue of Consideration
Whether the Defendant should be permitted to file its written statement after a delay of approximately seven years and whether the order of the Prothonotary directing the suit to proceed without written statement should be set aside.
Final Decision
The Court allowed the Interim Application, set aside the order dated 11th August 2010 passed by the Prothonotary and Senior Master, condoned the delay in filing the written statement, and permitted the Defendant to file its written statement dated 17th July 2014 subject to payment of costs of Rs. 25,000 to the Plaintiffs within two weeks.
Law Points
- Order VIII Rule 1 CPC
- Order VIII Rule 10 CPC
- Section 151 CPC
- condonation of delay
- right to file written statement
- setting aside ex parte order
- principles of natural justice
- sufficient cause for delay
