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CASE NO.: Appeal (civil)  1572 of 2007

PETITIONER: M/s Aditya Hotels (P) Ltd

RESPONDENT: Bombay Swadeshi Stores Ltd. and Ors

DATE OF JUDGMENT: 26/03/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No.7644 of 2006)

Dr. ARIJIT PASAYAT, J.

       Leave granted.

       Challenge in this appeal is to the order passed by a  learned Single Judge of the Bombay High Court  dismissing the Writ Petition filed by the appellant holding  that the order passed by the trial Court was a  discretionary one.  The trial Court by its order dated  9.9.2005 granted permission to the respondents to file  written statement subject to payment of costs of  Rs.2000/-. The said order was passed in Civil Suit  No.59/2005 by the Small Cause Judge, Pune.  

       Background facts in a nutshell are as follows:

       Appellant filed Civil Suit No.59 of 2005 in the Court  of Small Cause Judge, Pune, inter-alia seeking vacant and  peaceful possession of the suit premises. The suit was  filed on 24.12.2004. The Small Cause Judge, Pune, issued  summons to the respondents in the suit which were  served on 22.3.2005. On 25.4.2005 counsel for the  respondents filed vakalatnama and prayed for time to get  information from his client and to file written statement, if  any. On 20.6.2005 the matter was fixed for filing of the  written statement. However, no written statement was  filed. The Advocate requested for further time. The trial  Court granted time to the respondents to file written  statement at their own risk. Again, the matter was fixed  for 14.7.2005. On that date also written statement was  not filed. Again time was granted at the risk of the  respondents. The written statement in fact was filed on  12.8.2005. Appellant sought for time to file the objections  regarding the acceptability of the written statement which  was filed after 142 days. By a cryptic order dated 9.9.2005  as noted above written statements were permitted to be  filed and taken on record subject to payment of costs of  Rs.2,000/-. The order of the trial Court was challenged  before the High Court in a writ petition filed under Article  227 of the Constitution of India, 1950 (in short the  ’Constitution’). The High Court summarily dismissed the  writ petition on the ground that discretionary power has

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been exercised.  

       In support of the appeal, learned counsel for the  appellant submitted that after amendment to Order VIII of  the Code of Civil Procedure, 1908 (in short the ’Code’)  w.e.f. 1.7.2002, the defendant is granted  30 days time to  present the written statement. The period is to be  reckoned from the date of service of summons. However,  the proviso to the said provision permits extension of time  when the Court is satisfied about the existence of reasons  to be recorded in writing. It is submitted that neither the  trial Court nor the High Court indicated any reason  justifying the extension of time.  

       Learned counsel for the respondents on the other  hand submitted that the reason for excuse was shown for  filing of the written statement. Though elaborate  reasonings have not been indicated, the order being a  discretionary one, no interference is called for.   

       The parameters for extending the time granted by  Order VIII Rule 1 of the Code have been delineated by this  Court in several cases. In Kailash v. Nanhku and Ors.  (2005 (4) SCC 480) it was noted as follows:

"42. Ordinarily, the time schedule  prescribed by Order 8 Rule 1 has to be  honoured. The defendant should be  vigilant. No sooner the writ of summons is  served on  him he should take steps for  drafting his defence and filing the written  statement on the appointed date of  hearing without waiting for the arrival of  the date appointed in the summons for his  appearance in the Court. The extension of  time sought for by the defendant from the  Court whether within 30 days or 90 days,  as the case may be, should not be granted  just as a matter of routine and merely for  the asking, more so, when the period of 90  days has expired. The extension can be  only by way of an exception and for  reasons assigned by the defendant and  also recorded in writing by the court to its  satisfaction. It must be spelled out that a  departure from the time schedule  prescribed by Order 8 Rule 1 of the Code  was being allowed to be made because the  circumstances were exceptional,  occasioned by reasons beyond the control  of the defendant and such extension was  required in the interest of justice, and  grave injustice would be occasioned if the  time was not extended.

44.     The extension of time shall be only by  way of exception and for reasons to be  recorded in writing, howsoever brief they  may be, by the court. In no case, shall the  defendant be permitted to seek extension  of time when the court is satisfied that it is  a case of laxity or gross negligence on the  part of the defendant or his counsel. The  court may impose costs for dual purpose:  (i) to deter the defendant from seeking any

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extension of time just for the asking, and  (ii) to compensate the plaintiff for the delay  and inconvenience caused to him."          

       Since neither the trial Court nor the High Court have  indicated any reason to justify the acceptance of the  written statement after the expiry of the time fixed, we set  aside the orders of the trial Court and that of the High  Court. The matter is remitted to the trial Court to consider  the matter afresh in the light of what has been stated in  Kailash’s case (supra). The appeal is allowed to the  aforesaid extent with no order as to costs.