Case Note & Summary
The petitioner, Subhash Dhanraj Sankla, filed a suit for specific performance of an agreement to sell a property owned by Rhoda Phiroze Noble. The original defendant, Kaikhushroo @ Keki Phiroze Noble, was the son of Rhoda and allegedly entered into the agreement. The defendant died during the pendency of the suit, and his legal representatives (respondents) were brought on record. They filed applications (Exh. 184 and 186) seeking permission to file a written statement, which was allowed by the trial court on 27 July 2016. The petitioner's review application was rejected on 18 December 2017. The petitioner challenged these orders under Article 227 of the Constitution. The High Court held that Order VIII Rule 1 CPC is directory and the trial court had discretion to permit filing of written statement beyond the prescribed period. The legal representatives had sufficient cause for the delay as they were not aware of the proceedings earlier. No prejudice was caused to the plaintiff as the suit was at an early stage. The High Court dismissed the petition, upholding the trial court's orders.
Headnote
A) Civil Procedure - Written Statement - Order VIII Rule 1 CPC - Directory Nature - The provision prescribing time limit for filing written statement is directory and not mandatory; court has discretion to accept written statement beyond 90 days if sufficient cause is shown and no prejudice is caused to the opposite party. (Paras 10-15)
B) Civil Procedure - Substitution of Legal Representatives - Order XXII Rule 4 CPC - Abatement - Where the sole defendant dies and his legal representatives are brought on record, they are entitled to file a written statement even if the original defendant had not filed one, provided the delay is explained and no prejudice is caused. (Paras 16-20)
C) Constitutional Law - Article 227 - Scope of Interference - High Court under Article 227 can interfere only if the subordinate court has committed a jurisdictional error or acted perversely; mere erroneous decision on facts or law does not warrant interference. (Paras 21-25)
Issue of Consideration
Whether the trial court erred in permitting the legal representatives of the deceased defendant to file a written statement beyond the period prescribed under Order VIII Rule 1 of the Code of Civil Procedure, 1908, and whether the High Court should interfere under Article 227 of the Constitution of India.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's orders dated 27 July 2016 and 18 December 2017. The legal representatives were permitted to file written statement.
Law Points
- Order VIII Rule 1 CPC is directory
- not mandatory
- Court has discretion to accept written statement beyond 90 days for sufficient cause
- Legal representatives can be substituted and file written statement even after delay if no prejudice to plaintiff
- Article 227 of Constitution of India scope is limited to jurisdictional errors.
Case Details
Writ Petition No. 3884 of 2018
Mr. R.D. Soni a/w Mr. Tushar R. Momaiyar i/b M/s. Ram and Co. for petitioner; Mr. Siddhartha Ravindra Ronghe i/b M.K. Irani for respondent Nos.1(a) to 1(d)
Mrs. Zubil P. Noble Dennis, Smt. Noble D.K., Mr. Shiraz Kersi Noble, Miss Tanaz Kersi Noble
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Nature of Litigation
Civil writ petition under Article 227 of the Constitution of India challenging orders of the trial court permitting legal representatives of the deceased defendant to file written statement beyond the prescribed period.
Remedy Sought
Petitioner sought to quash the trial court's order dated 27 July 2016 allowing the respondents (legal representatives) to file written statement and the order dated 18 December 2017 rejecting the review application.
Filing Reason
Petitioner contended that the trial court erred in permitting the filing of written statement beyond the period of 90 days under Order VIII Rule 1 CPC without sufficient cause.
Previous Decisions
Trial court allowed the applications (Exh. 184 and 186) of the defendants to file written statement on 27 July 2016; review application was rejected on 18 December 2017.
Issues
Whether the trial court's order permitting the legal representatives to file written statement beyond the prescribed period under Order VIII Rule 1 CPC was erroneous?
Whether the High Court should interfere under Article 227 of the Constitution of India?
Submissions/Arguments
Petitioner argued that the written statement was filed after inordinate delay without sufficient cause, and the trial court failed to consider that the original defendant had not filed written statement during his lifetime.
Respondents argued that they were brought on record as legal representatives and had sufficient cause for delay as they were not aware of the proceedings; no prejudice was caused to the plaintiff.
Ratio Decidendi
Order VIII Rule 1 CPC is directory and not mandatory; the court has discretion to accept written statement beyond the prescribed period if sufficient cause is shown and no prejudice is caused to the opposite party. Legal representatives of a deceased defendant are entitled to file a written statement even if the original defendant had not filed one, provided the delay is explained.
Judgment Excerpts
Order VIII Rule 1 CPC is directory and not mandatory.
The court has discretion to accept written statement beyond 90 days if sufficient cause is shown and no prejudice is caused.
Legal representatives are entitled to file written statement even if the original defendant had not filed one.
Procedural History
The suit for specific performance was filed by the petitioner. The original defendant died, and his legal representatives were brought on record. They filed applications (Exh. 184 and 186) for permission to file written statement, which were allowed on 27 July 2016. The petitioner's review application was rejected on 18 December 2017. The petitioner then filed the present writ petition under Article 227 of the Constitution of India.
Acts & Sections
- Code of Civil Procedure, 1908: Order VIII Rule 1, Order XXII Rule 4
- Constitution of India: Article 227
