Case Note & Summary
The petitioner, original defendant No.3 in a partition suit, challenged the Trial Court's order rejecting her application to set aside the 'no additional written statement' order. The suit was filed by the respondents for partition, declaration, and possession. The petitioner had already filed a written statement to the original plaint. Subsequently, the plaintiffs amended the plaint to incorporate a Will and Codicil. The amendment was allowed, and the petitioner challenged it via a writ petition, which was later withdrawn. Thereafter, the Trial Court passed a 'no additional written statement' order against the petitioner. The petitioner filed an application to set aside that order, explaining that the delay was due to the papers being with the advocate and not collected. The Trial Court rejected the application citing laxity and gross negligence. The High Court held that Order VIII Rule 1 CPC is directory, not mandatory, and the delay was not intentional. The court allowed the petition, set aside the Trial Court's order, and permitted the petitioner to file an additional written statement within four weeks, subject to costs of Rs. 1,000.
Headnote
A) Civil Procedure - Written Statement - Order VIII Rule 1 CPC - Directory Nature - The provision of Order VIII Rule 1 CPC is directory and not mandatory, as held in Kailash v. Nankhu (2005) 4 SCC 480. The court has discretion to condone delay in filing written statement if the delay is not intentional and no prejudice is caused to the other side. (Paras 3, 5) B) Civil Procedure - Amendment of Plaint - Additional Written Statement - Right to File - When a plaint is amended, the defendant has a right to file an additional written statement to meet the new averments. Denying such opportunity without sufficient cause may result in injustice. (Paras 5-6) C) Civil Procedure - Delay Condonation - Negligence of Counsel - The delay caused by the papers being with the advocate and not collected by the party can be condoned if the party acted bona fide. The court should adopt a liberal approach to ensure substantial justice. (Paras 3, 6)
Issue of Consideration
Whether the Trial Court was justified in rejecting the application to set aside the 'no additional written statement' order and permit the defendant to file an additional written statement after the plaint was amended.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 8-6-2011, and permitted the petitioner to file an additional written statement within four weeks from the date of the order, subject to payment of costs of Rs. 1,000 to the respondents.
Law Points
- Order VIII Rule 1 CPC is directory
- not mandatory
- delay in filing additional written statement can be condoned if not intentional and no prejudice caused
- right to file written statement is valuable and should not be denied on technical grounds
