Bhagwan Mukund Asolkar, Vilas Shankar Asolkar and Dattaram Mukund Asolkar vs Nakul Bablo Asolkar and Others

A.P. Lavande, J.—By this petition, the petitioners take exception to the order dated 26th March, 2009 rejecting the prayer of the petitioners to file written statement in Civil Suit No. 43/2008 pending before the Ad hoc District Judge - I, Panaji beyond the period of 90 days from the date of service of summons. The petitioners are the defendant Nos. 7, 8 and 9 in the suit filed by the respondent No. 1. The petitioners were served with the summons on 1st July, 2008. On 3rd July, 2008, 19th July, 2008, 18th August, 2008 and 28th August, 2008, the petitioners sought time to file written statement, which was granted by the Ad hoc District Judge -I. On 17th September, 2008, the matter was referred to Lok Adalat. No settlement could be arrived at before the Lok Adalat and as such, on 17th January, 2009, the matter was sent back to the Court. The trial Court issued notices to the parties to appear on 12th March, 2009. On 12th March, 2009, the petitioners sought time to file written statement. The matter was adjourned to 26th March, 2009. On 26th March, 2009 again, the application was filed by the Associate of the Advocate appearing for the petitioners seeking further time on the ground that on account of personal difficulty, the written statement could not be prepared. The prayer for time was rejected by the learned trial Judge on the ground that no exceptional case was made out for extending time to file written statement beyond 90 days. Thereafter, the petitioners filed an application seeking review, which was dismissed by the learned trial Judge by order dated 20th November, 2009.

Mr. Menezes, learned Counsel for the petitioners submitted that since the matter was pending before the Lok Adalat, the learned trial Judge ought to have extended the time beyond 90 days and serious prejudice would be caused to the petitioners if they are not allowed to file the written statement. According to Mr. Menezes, exceptional circumstances do exist justifying filing of the written statement beyond the period of 90 days. He further submitted that on account of the fact that the date fixed on 26th March, 2009 was not informed to the Advocate appearing for the petitioners, the written statement could not be filed and as such, the petitioners cannot be made to suffer on account of mistake of their Advocate.

Per contra, Mr. Lotlikar, learned Counsel appearing for the the respondent No. 1 and Mrs. Linhares, learned Additional Government Advocate appearing for the respondent Nos. 2, 3, 4, 6 and 7 supported the impugned order and submitted that no exceptional circumstances exist justifying granting of time to file written statement beyond the period of 90 days. The learned Counsel, therefore, submitted that no case has been made out for interference in exercise of extra-ordinary jurisdiction of this Court.

Having considered the rival submissions and having perused the record, I am of the considered opinion that no case has been made out for interference by this Court with the impugned order. The fact remains that on 17th January, 2009 the matter was sent back to the Civil Court since parties did not agree to settle the matter before the Lok Adalat. As such, the petitioners had sufficient time to prepare the written statement. Even pendency of the proceedings before the Lok Adalat would not by itself be sufficient to hold that exceptional circumstances existed justifying filing written statement after 90 days. Moreover, the application filed on 26th March, 2009 by the Associate Advocate, discloses that the time was sought on the ground of personal difficulty and in the review application entirely different stand was taken. In the review application, the Advocate appearing for the petitioners stated that his Associate Advocate did not inform him the date and only after he was informed on 26th March, 2009 that the matter was fixed on the said day, he filed application seeking extension of time. It is well settled that although Order VIII, Rule 1 of CPC is not mandatory, filing of written statement beyond the period of 90 days, can be granted only if exceptional circumstances exist. See (i) Kailash Vs. Nanhku and Others, (ii) Smt. Rani Kusum Vs. Smt. Kanchan Devi and Others, and (iii) Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), . In the present case, no exceptional circumstances exist justifying the filing of the written statement beyond the period of 90 days. I am unable to accept the submission of Mr. Menezes that on account of mistake of the Advocate, the petitioners would suffer. As stated above, the petitioners had sufficient time during the pendency of the proceeding before Lok Adalat and the after the matter was sent back to the Court for adjudication to prepare the written statement and to file the same. Therefore, in my considered opinion, it cannot be said that exceptional circumstances existed justifying grant of time to the petitioners to file written statement beyond the period of 90 days. In view of the above, I do not find any jurisdictional error having been committed by the learned trial Judge while passing the impugned order. Hence, the petition is dismissed.