Case Note & Summary
The petitioner, Pramod Baliram Wavge, was the defendant in Regular Civil Suit No.17/2004 before the Civil Judge Junior Division, Patur. He appeared on 16.07.2004 and instead of filing a written statement, he filed an application under Section 9-A of the Code of Civil Procedure, 1908 (CPC) challenging the court's jurisdiction. That application was rejected on 28.01.2005. Five days later, on 03.02.2005, the defendant filed an application seeking permission to file a reply and written statement. He annexed a reply to the plaintiff's application under Order 39 Rules 1 and 2 CPC but did not annex the written statement. The plaintiff objected, and the trial court rejected the application in toto, relying on the Bombay High Court's decision in Chintaman Sukhdeo v. Shivaji Bhausaheb, 2004(4) Mh.L.J. 739, and observing that the written statement was not submitted along with the application. The defendant challenged this order by way of a writ petition. The High Court heard counsel for both sides. The petitioner's counsel argued that the defendant did not intend to delay proceedings and that the trial court ought to have granted permission subject to costs. The respondent's counsel opposed, citing the delay and the failure to annex the written statement. The High Court held that Order 8 Rule 1 CPC is directory and not mandatory, and that the court has discretion to allow filing of written statement beyond the prescribed period on payment of costs. It noted that the defendant had earlier filed a jurisdictional challenge, which did not waive his right to file a written statement. The court found that the trial court's rejection was improper as it did not consider the merits and did not grant an opportunity subject to costs. Accordingly, the High Court allowed the petition, set aside the impugned order, and permitted the defendant to file his written statement within four weeks, subject to payment of costs of Rs.500 to the plaintiff. The rule was made absolute with no order as to costs.
Headnote
A) Civil Procedure - Written Statement - Delay in Filing - Order 8 Rule 1 CPC - The provision for filing written statement within 30 days is directory and not mandatory; court has discretion to allow filing beyond the prescribed period on payment of costs, especially when the defendant had earlier filed a jurisdictional challenge under Section 9-A CPC. (Paras 6-7) B) Civil Procedure - Jurisdictional Challenge - Effect on Filing Written Statement - Section 9-A CPC - Filing an application under Section 9-A CPC challenging jurisdiction does not waive the defendant's right to file a written statement; the defendant can seek leave to file written statement after the jurisdictional issue is decided. (Paras 3, 6) C) Civil Procedure - Rejection of Application - Improper Exercise of Discretion - The trial court's rejection of the defendant's application for leave to file written statement and reply, solely on the ground that the written statement was not annexed and relying on Chintaman Sukhdeo v. Shivaji Bhausaheb, was improper as the court ought to have considered the merits and granted opportunity subject to costs. (Paras 4, 7)
Issue of Consideration
Whether the trial court was justified in rejecting the defendant's application for permission to file written statement and reply, filed after rejection of his application under Section 9-A CPC, on the ground that the written statement was not annexed and that the application was belated.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 03.02.2005 passed by the Civil Judge Junior Division, Patur, and permitted the defendant to file his written statement within four weeks from the date of the order, subject to payment of costs of Rs.500 to the plaintiff. 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 on payment of costs
- Section 9-A CPC application does not preclude filing of written statement later
- rejection of application for leave to file written statement without considering merits is improper
