Case Note & Summary
The petitioner, original plaintiff, filed Regular Civil Suit No.502 of 2008 for permanent injunction against the respondents. The defendants appeared on 24/7/2008 but failed to file written statement within the time prescribed under Order VIII Rule 1 CPC. Consequently, a 'No Written Statement Order' was passed on 26/6/2009. Subsequently, the plaintiff filed his affidavit in lieu of examination-in-chief, and due to the defendants' persistent absence, a 'No Cross Order' was passed on 31/7/2009. The defendants filed an application (Exhibit 20) to set aside the 'No Cross Order', which was rejected. On 17/4/2010, they filed another application (Exhibit 25) seeking to set aside the 'No Written Statement Order', claiming that one defendant was a government servant busy with election duties and that the dispute was referred to a Village Dispute Redressal Committee where the plaintiff agreed to reconvey the suit land. The trial court allowed the application and set aside the 'No Written Statement Order' on payment of costs of Rs.1000, without considering the grounds for delay. The plaintiff challenged this order in the High Court. The High Court held that the trial court must consider whether sufficient cause exists for the delay before granting extension of time to file written statement. Since the impugned order did not advert to the grounds set out in the application, it was unsustainable. The High Court set aside the order and remanded the matter to the trial court for fresh consideration.
Headnote
A) Civil Procedure - Written Statement - Order VIII Rule 1 CPC - Extension of Time - The trial court set aside a 'No Written Statement Order' and permitted defendants to file written statement on payment of costs, without adverting to the grounds for delay. The High Court held that the trial court must consider whether sufficient cause exists for the delay before granting extension. The impugned order was set aside as it did not consider the reasons for delay. (Paras 6-8)
Issue of Consideration
Whether the trial court was justified in setting aside the 'No Written Statement Order' and permitting the defendants to file written statement without considering the grounds for delay.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 30/04/2010, and remanded the matter to the trial court for fresh consideration of the defendants' application Exhibit 25 in accordance with law.
Law Points
- Order VIII Rule 1 CPC is directory but must be complied with
- extension of time for filing written statement requires sufficient cause
- trial court must consider grounds for delay before setting aside 'No Written Statement Order'.
Case Details
2011 LawText (BOM) (12) 81
Writ Petition No. 1270 of 2011
Mr. Shrishail Sakhare for the Petitioner. None for the Respondents.
Sou Saraswati Gurushantayaa Swami
Smt. Sulbha Malappa Chinchole, Yashwant Malappa Chinchole, Jaywant Malappa Chinchole
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Nature of Litigation
Civil writ petition challenging trial court order setting aside 'No Written Statement Order' and permitting late filing of written statement.
Remedy Sought
Petitioner sought to quash the trial court order dated 30/04/2010 allowing defendants to file written statement.
Filing Reason
The trial court set aside the 'No Written Statement Order' without considering the grounds for delay.
Previous Decisions
Trial court passed 'No Written Statement Order' on 26/6/2009; 'No Cross Order' on 31/7/2009; rejected defendants' application Exhibit 20 to set aside 'No Cross Order'; allowed application Exhibit 25 setting aside 'No Written Statement Order' on 30/4/2010.
Issues
Whether the trial court was justified in setting aside the 'No Written Statement Order' without considering the grounds for delay.
Whether the trial court must consider sufficient cause before granting extension of time to file written statement under Order VIII Rule 1 CPC.
Submissions/Arguments
Petitioner argued that the defendants were negligent and the trial court did not consider the grounds for delay.
Defendants contended that one defendant was busy with election duties and the parties were negotiating through a Village Dispute Redressal Committee.
Ratio Decidendi
The trial court must consider whether sufficient cause exists for the delay in filing written statement before granting extension of time under Order VIII Rule 1 CPC. The impugned order was set aside as it did not advert to the grounds for delay.
Judgment Excerpts
In allowing the said Application, significantly the trial Court has not adverted to the grounds set out in the application on the basis of which the setting aside of the 'No Written Statement Order' was sought.
The trial Court must consider whether sufficient cause exists for the delay in filing the written statement before granting extension of time.
Procedural History
The petitioner filed Regular Civil Suit No.502 of 2008 for permanent injunction. Defendants appeared on 24/7/2008 but did not file written statement. 'No Written Statement Order' passed on 26/6/2009. 'No Cross Order' passed on 31/7/2009. Defendants' application Exhibit 20 to set aside 'No Cross Order' rejected. Defendants filed application Exhibit 25 on 17/4/2010 to set aside 'No Written Statement Order'. Trial court allowed it on 30/4/2010. Petitioner filed Writ Petition No.1270 of 2011 challenging that order.
Acts & Sections
- Code of Civil Procedure, 1908: Order VIII Rule 1
