Case Note & Summary
The petitioners, defendants in Special Civil Suit No. 31 of 2008, challenged the order dated 12/1/2010 passed by the Civil Judge, Senior Division, Baramati, rejecting their application (Exhibit 38) to set aside the 'No Written Statement Order'. The defendant No.5 (petitioner No.4) had been served summons on 1/4/2008 and appeared on 8/4/2008. Time was granted to file written statement till 30/6/2008, and further as last chance till 17/7/2008. On 17/7/2008, the defendant failed to file the written statement and his application for further time was rejected. He then filed an application (Exhibit 34) explaining the delay, which was also rejected. He filed Writ Petition No.1573 of 2009 in the High Court, where his advocate filed a personal affidavit accepting communication gap. The High Court set aside the rejection and directed the defendant to file a fresh application relying on that affidavit. Pursuant to that order, the defendant filed a fresh application (Exhibit 38) with the advocate's affidavit appended and a fresh affidavit on similar lines, but the fresh affidavit was not affirmed. The trial court rejected the application solely on the ground of non-affirmation. The High Court held that since the advocate's affidavit was already on record, rejecting the application for non-affirmation of the supporting affidavit was hyper technical. The court emphasized that procedure is the handmaid of justice and should not be used to oppress. The impugned order was set aside, and the trial court was directed to allow the defendant to file the written statement within two weeks. The writ petition was allowed.
Headnote
A) Civil Procedure - Written Statement - Setting aside 'No Written Statement Order' - Order VIII Rule 1 CPC - The trial court rejected the application because the supporting affidavit was not affirmed, even though the advocate's affidavit explaining the communication gap was appended. The High Court held that this was a hyper technical view and procedure must serve justice. (Paras 6-7)
Issue of Consideration
Whether the trial court was justified in rejecting the application for setting aside the 'No Written Statement Order' solely on the ground that the supporting affidavit was not affirmed, despite the advocate's affidavit being on record.
Final Decision
The impugned order dated 12/1/2010 is set aside. The trial court is directed to allow the defendant No.5 to file his written statement within two weeks from the date of the order. The writ petition is allowed. Rule made absolute accordingly.
Law Points
- Procedure is handmaid of justice
- hyper technical view not warranted
- communication gap between advocate and client as sufficient cause
Case Details
2011 LawText (BOM) (12) 28
Writ Petition No.2269 of 2010
Mr. A P Kulkarni for the Petitioners, Mr. Vimalnath Tiwari for the Respondents
Bhagwan Narayan Dhole and ors.
Arjun Narayan Dhole since deceased through LRs Shakuntala Arjun Dhole and ors.
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Nature of Litigation
Writ Petition challenging rejection of application to set aside 'No Written Statement Order' in a civil suit.
Remedy Sought
Petitioners (defendants) sought setting aside of the order rejecting their application to file written statement.
Filing Reason
The trial court rejected the application because the supporting affidavit was not affirmed, despite the advocate's affidavit being appended.
Previous Decisions
Earlier, the defendant's application (Exhibit 34) was rejected; the High Court in Writ Petition No.1573 of 2009 set aside that rejection and directed the defendant to file a fresh application relying on the advocate's affidavit.
Issues
Whether the trial court was justified in rejecting the application for setting aside the 'No Written Statement Order' solely on the ground that the supporting affidavit was not affirmed, despite the advocate's affidavit being on record.
Submissions/Arguments
Petitioners argued that the rejection was hyper technical as the advocate's affidavit explaining the communication gap was already appended.
Respondents did not dispute the ground of communication gap.
Ratio Decidendi
Procedure is the handmaid of justice and should not be used to oppress. A hyper technical view rejecting an application for setting aside 'No Written Statement Order' solely because the supporting affidavit was not affirmed, when the advocate's affidavit explaining the delay was already on record, is not warranted. The court should lean towards allowing the defendant to file the written statement to decide the case on merits.
Judgment Excerpts
In my view, since the affidavit of the advocate filed in this Court was already appended to the application, rejection of the said application on account of nonaffirmation of the affidavit filed in support of the said application would in my view amount to taking a hyper technical view of the matter.
It is well settled that procedure is ultimately an hand made of justice and has to be used to further cause of substantial justice and not oppress it.
Procedural History
Summons served on 1/4/2008; defendant appeared on 8/4/2008; time granted till 30/6/2008 and then as last chance till 17/7/2008; on 17/7/2008, application for further time rejected; application Exhibit 34 rejected; Writ Petition No.1573 of 2009 filed; High Court set aside rejection and directed fresh application; fresh application Exhibit 38 filed; trial court rejected it on 12/1/2010; present writ petition filed.
Acts & Sections
- Code of Civil Procedure, 1908: Order VIII Rule 1
