Case Note & Summary
The petitioner, Dhiraj Vijaykant Kudale, filed a writ petition under Article 227 of the Constitution of India challenging three orders passed by the trial court in a civil suit. The suit was filed by the respondent No.1, Anita Ramchandra Raskar, seeking a declaration that decrees passed in Special Civil Suit No. 544 of 2004 and Special Civil Suit No. 547 of 2004 were null and void and not binding on her, and for a permanent injunction restraining the defendants from creating third party interests or alienating assets of the deceased Chandrakant Shankarrao Kudale. The suit summons were served on defendant No.8 on 13th May 2007, and he appeared on 15th June 2007 through an advocate. However, he failed to file his written statement within the prescribed period. The trial court passed a 'no written statement' order and subsequently rejected his applications to set aside that order and to permit filing of the written statement. The petitioner challenged these orders. The High Court considered the nature of Order 8 Rule 1 CPC and held that it is directory and not mandatory. The court observed that the right to file a written statement is not extinguished merely because the period of 90 days has expired. The court found that the defendant had shown sufficient cause for the delay and that no prejudice would be caused to the plaintiff if the written statement was allowed to be filed, as the suit was still at an early stage. The court set aside the impugned orders and allowed the defendant to file his written statement within four weeks, subject to payment of costs of Rs. 5,000/- to the plaintiff.
Headnote
A) Civil Procedure - Written Statement - Condonation of Delay - Order 8 Rule 1, Code of Civil Procedure, 1908 - The court considered whether a defendant should be permitted to file a written statement after the expiry of the 90-day period prescribed under Order 8 Rule 1 CPC. The court held that the provision is directory and not mandatory, and the court has discretion to condone delay on sufficient cause being shown. The court allowed the filing of the written statement subject to payment of costs of Rs. 5,000/-. (Paras 1-6) B) Civil Procedure - Suit for Declaration and Injunction - Challenge to Decrees - The suit sought declaration that decrees in Special Civil Suit No. 544 of 2004 and Special Civil Suit No. 547 of 2004 were null and void and not binding on the plaintiff, and injunction restraining defendants from creating third party interests. The dispute pertained to assets of deceased Chandrakant Kudale. (Paras 2-3)
Issue of Consideration
Whether the Respondent No.8 should be allowed to file his Written Statement despite the expiry of the period prescribed under Order 8 Rule 1 of the Code of Civil Procedure, 1908
Final Decision
The High Court allowed the writ petition, set aside the impugned orders dated 23.08.2007, 04.03.2008 (Exhibit46 and Exhibit47), and permitted the Respondent No.8 to file his written statement within four weeks from the date of the order, subject to payment of costs of Rs. 5,000/- to the plaintiff.
Law Points
- Order 8 Rule 1 CPC is directory not mandatory
- delay in filing written statement can be condoned on sufficient cause
- right to file written statement is not extinguished by expiry of 90 days
- court has discretion to allow filing even after prescribed period
