Case Note & Summary
The petitioners, who are the plaintiffs in Regular Civil Suit No.177/2007/A, challenged the order dated 20-8-2009 of the learned Civil Judge, Senior Division, Mapusa, which disallowed them from filing a written statement to the counterclaim filed by the defendants. The defendants had filed their written statement with counterclaim on 8-2-2008. On 14-3-2008, the case was adjourned and fixed for arguments on the temporary injunction application. On 17-4-2008, the plaintiffs sought time to file a written statement to the counterclaim, which was granted without objection. However, due to court vacations on several dates (2-7-2008, 7-8-2008, 3-10-2008, 4-11-2008, and 6-12-2008), the matter was delayed. On 30-1-2009, the plaintiffs filed an application seeking time to file the written statement, which was rejected on the ground that it was beyond 90 days. On the same day, they filed a comprehensive application for condonation of delay, explaining that some documents relied upon by the defendants in the counterclaim were not furnished to them. The trial court rejected this application as well, leading to the present writ petition. The High Court held that Order 8 Rule 6A of the Code of Civil Procedure, 1908 does not prescribe any specific period for filing a written statement to a counterclaim, and the period of 90 days under Order 8 Rule 1 CPC is directory and not mandatory. The court found that the plaintiffs had sufficient cause for the delay, including court vacations and the defendants' lack of objection to the earlier request for time. The court set aside the impugned order and allowed the plaintiffs to file their written statement to the counterclaim within two weeks, with costs of Rs. 1,000 payable to the defendants.
Headnote
A) Civil Procedure - Counterclaim - Written Statement - Order 8 Rule 6A, Code of Civil Procedure, 1908 - The court held that Order 8 Rule 6A CPC does not prescribe any specific period for filing a written statement to a counterclaim; the period of 90 days under Order 8 Rule 1 CPC is directory and not mandatory. The trial court erred in rejecting the application for condonation of delay without considering the reasons for delay, including court vacations and the fact that the defendants had not objected to the earlier request for time. (Paras 8-12) B) Civil Procedure - Condonation of Delay - Sufficient Cause - Order 8 Rule 1, Code of Civil Procedure, 1908 - The court held that the period of 90 days for filing a written statement under Order 8 Rule 1 CPC is directory and not mandatory, and the court has discretion to condone delay for sufficient cause. The plaintiffs' explanation that they were awaiting documents from the defendants and that the court had no sittings on several dates constituted sufficient cause. (Paras 8-12) C) Civil Procedure - Right to be Heard - Natural Justice - The court held that the plaintiffs have a right to file a written statement to the counterclaim and that the trial court's order denying that right without hearing the plaintiffs on the merits of the delay was erroneous. The court set aside the impugned order and allowed the plaintiffs to file their written statement within two weeks. (Paras 12-13)
Issue of Consideration
Whether the plaintiffs/petitioners should be allowed to file a written statement to the counterclaim filed by the defendants beyond the period of 90 days, and whether the learned Civil Judge erred in rejecting the application for condonation of delay.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 20-8-2009, and directed that the plaintiffs be permitted to file their written statement to the counterclaim within two weeks from the date of the order, subject to payment of costs of Rs. 1,000 to the defendants.
Law Points
- Order 8 Rule 6A CPC does not prescribe a specific period for filing written statement to counterclaim
- Order 8 Rule 1 CPC period of 90 days is directory
- Condonation of delay in filing written statement to counterclaim
- Right to file written statement to counterclaim cannot be denied without hearing
- Court vacations are sufficient cause for delay
