Interim Order 3

Order Details: Order on Exhibit
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CNR NO.MHSCA-30004312022
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT NO.18
IN
R.A.E. SUIT NO. 200 OF 2022
Mr. Kali Savak Suntoke . . Plaintiff.
Versus
Mr. Firoze Kaikhushroo Kanga . . Defendant.
Coram : A.S. Pandagle, Judge
C.R.No.32
Date : 15/12/2023.
ORAL ORDER :
1. Perused the application and say filed thereon.
2. Heard both sides.
3. Present application is filed on behalf of defendant for
condonation of delay in filing written statement and for to take the
written statement of the defendant on record. By filing present
application it is contended that due to injunction application Exh.10
and application for dismissal of the suit for non joinder of the party
under Order 1 Rule 9 of the Code of Civil Procedure, 1908, filed by
defendant below Exh.14 pending for argument and adjudication, the
defendant was unable to file written statement, the delay is not
intentional and it is unavoidable due to the facts and circumstances
set out in the application, the defendant has not acted in negligence
manner. There is reasonable and justifiable ground for grant of
present application. Therefore, submitted that application may be
allowed.
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4. On the other hand, plaintiff by filing reply resisted the
application and contended that the application is not maintainable in
the eyes of law. The written statement is required to be filed within
30 days as per the provisions of law. Delay caused for filing written
statement is intentional. Defendant has not made out case for
condonation of delay in filing written statement, therefore,
contended that application may be rejected with costs.
5. Heard Ld. Advocate for defendant. He relied upon cited
case law, Salem Advocate Bar Association, T.N. Vs. Union of India
reported in (2005) 6 Supreme Court Cases 344, and submitted that
the provisions of Order 8 Rule 1 of the Code of Civil Procedure,
1908, is directory and not mandatory. Also heard Ld. Advocate for
the plaintiff.
6. After hearing both sides, gone through the contents of
the application and reply filed thereon, also gone through the record
of the proceedings. By way of this application, defendant seeking
relief of condonation of delay in filing written statement, also
seeking permission to place his written statement on record. By way
of this application it is contended that interim application Exh.10
filed by plaintiff and application for dismissal of suit for non joinder
of necessary party under Order 1 Rule 9 of the Code of Civil
Procedure, 1908, Exh.14 filed by the defendant were pending for
determination, therefore, delay caused for filing written statement.
No doubt, as per the provisions of Order 8 Rule 1 of the Code of Civil
Procedure, 1908, the written statement is required to be filed within
30 days from the date of service of summons. The Court may extend
the time upto 90 days, but reasons to be recorded. The provisions of
Order 8 Rule 1 is directory in nature and not mandatory.
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Considering the reasons stated in this application and also
considering the nature of proceeding, if the defendant is permitted to
place his written statement on record subject to costs, it would not
cause prejudice to the plaintiff, it would definitely becomes helpful
for deciding the matter on its merit. Hence, I proceed to pass the
following order.
ORDER
1. Application is allowed, subject to costs of
Rs.1,000/- (Rs.One Thousand only) to be paid
to the plaintiff on or before next date.
2. Delay caused for filing written statement is
hereby condoned and defendant is permitted
to place his written statement on record, after
payment of costs amount.
Sd/-
Bandra - Mumbai. ( A.S. Pandagle )
Date : 15/12/2023. Judge, C. R. No.32.
.
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