Case Note & Summary
The petitioners, defendants in a civil suit, challenged an order rejecting their written statement for being filed 24 days after the expiry of 90 days from service of summons. The High Court of Bombay at Goa allowed the petition, holding that the delay was not intentional and was justified by the plaintiff's failure to provide copies of documents and the court's own order fixing a date for filing beyond the 90-day period. The court emphasized that Order 8 Rule 1 CPC is directory and that the trial court should have considered the circumstances before rejecting the written statement.
Headnote
A) Civil Procedure - Written Statement - Delay in Filing - Order 8 Rule 1, Code of Civil Procedure, 1908 - The court held that the delay of 24 days in filing the written statement was not intentional and was caused by the plaintiff's failure to furnish copies of documents and the court fixing a date beyond 90 days. The impugned order rejecting the written statement was set aside. (Paras 5-6)
Issue of Consideration
Whether the written statement filed beyond 90 days from service of summons can be rejected under Order 8 Rule 1 of CPC when the delay is due to plaintiff's failure to furnish documents and the court had fixed a later date for filing.
Final Decision
The impugned order dated 16.02.2005 is set aside. The written statement filed by the petitioners shall be taken on record. Rule made absolute with no order as to costs.
Law Points
- Order 8 Rule 1 CPC is directory not mandatory
- delay in filing written statement can be condoned for sufficient cause
- plaintiff's failure to furnish documents is a valid ground for delay
- court fixing a date beyond 90 days indicates condonation of delay
Case Details
2006 LawText (BOM) (01) 33
Writ Petition No. 266 of 2005
Shri F. M. Reis for Petitioners, Shri J. Godinho for Respondents No.1,2 and 3
Mrs. Alda Valezia Tereza Mergulhao e Lobo and Mrs. Maura Dulce Joseph Meregulhao e Crasto
Mr. Joaquim Jeronimo de Almeida and others
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Nature of Litigation
Civil writ petition challenging rejection of written statement in a regular civil suit.
Remedy Sought
Petitioners sought to set aside the order rejecting their written statement and to allow it to be taken on record.
Filing Reason
The written statement was filed 24 days after the expiry of 90 days from service of summons, and the trial court rejected it.
Previous Decisions
The Additional Civil Judge, S.D., Margao allowed the respondents' application for rejection of the written statement on 16.02.2005 in Regular Civil Suit No.282/2003/F.
Issues
Whether the delay of 24 days in filing the written statement was justified due to plaintiff's failure to furnish documents and court fixing a later date.
Whether Order 8 Rule 1 CPC is mandatory or directory.
Submissions/Arguments
Petitioners argued delay was not intentional and due to plaintiff's failure to furnish documents and court fixing a date beyond 90 days.
Respondents argued no obligation to furnish copies and delay was unjustified.
Ratio Decidendi
Order 8 Rule 1 CPC is directory and not mandatory. The court must consider the reasons for delay and the conduct of parties before rejecting a written statement. Plaintiff's failure to furnish documents and court fixing a later date constitute sufficient cause for delay.
Judgment Excerpts
The delay in filing the written statement was not intentional besides that it was on account of failure on the part of the respondents/plaintiffs to furnish copies of the documents sought to be relied upon by the respondents as also on account of fixing of specific date for filing the written statement beyond the period 90 days.
In the case in hand, there was a delay of 24 days in filing the written statement.
Procedural History
The petitioners filed a writ petition in the High Court of Bombay at Goa challenging the order dated 16.02.2005 passed by the Additional Civil Judge, S.D., Margao in Regular Civil Suit No.282/2003/F, which allowed the respondents' application for rejection of the written statement. The High Court heard the matter and delivered judgment on 27.01.2006.
Acts & Sections
- Code of Civil Procedure, 1908: Order 8 Rule 1, Order 7 Rule 14
