Bruno Noronha Indian National and Others vs Michael Tony Ferns

F. M. Reis, J.—Heard Shri R. Rao, learned Counsel appearing for the petitioners and Ms. A. Fernandes, learned Counsel appearing for the respondent. Rule.

Ms. A. Fernandes, learned Counsel appearing for the respondent.

Heard forthwith by consent of learned counsels.

The above petition challenges both the orders dated 02.03.2012 passed by the learned Ad-hoc Civil Judge Senior Division, Mapusa, disposing of the applications dated 03.01.2012 filed by the petitioners as well as the respondent. The application of the petitioners was for extension of time to file the written statement whereby the application filed by the respondent was to preclude the petitioners from filing written statement, the written statement was not filed within the time prescribed.

Shri Rao, learned Counsel appearing for the petitioners has pointed out that the petitioners were served in the first week of October, 2011 and thereafter the petitioners filed their reply to the application for temporary injunction. The learned Counsel further pointed out that the petitioners also sought time to file the written statement which was granted by the learned Judge. The learned Counsel further pointed out that the matter was posted on 26.12.2011 when the petitioner filed an application for time to file the written statement. The matter was thereafter posted to 03.01.2012 for filing the written statement by the petitioners. The learned Counsel further pointed out that on 03.01.2012 the petitioners on account of the fact that they are based in Bombay and at the relevant time the air tickets to come to Goa were excessively at a higher side the petitioners sought for an adjournment of 15 days. On the said date, the respondent also filed another application dated 03.01.2012 to the effect that the petitioners should be precluded from filing the written statement as they have not filed such written statement within time prescribed. The learned Judge after hearing the arguments on the said applications, ultimately, disposed of both the said applications by two impugned orders passed on 02.03.2012. The learned Counsel further pointed out that the petitioners had a justifiable reason not to file the written statement on 03.01.2012 and the learned Judge was not justified to refuse the extension of time to file the written statement. The learned Counsel further pointed out that on account of the reasons beyond the control of the petitioners, such written statement was not filed within the time prescribed and consequently, the petitioners should be permitted to file the written statement on the terms as directed by this Court. The learned Counsel further pointed out that in case no written statement is filed, grave prejudice shall occasion to the petitioners with regard to the stand of the petitioners in the suit.

On the other hand, Ms. A. Fernandes, learned Counsel appearing for the respondent has taken me through the impugned orders and pointed out that the petitioners have not sought any time to file the written statement within the time prescribed and consequently, according to her, the petitioners are not entitled to seek indulgence to file the written statement belatedly. The learned Counsel further pointed out that the conduct of the petitioners in not filing the written statement within the time prescribed disentitle them to seek any relief from this Court to file such written statement. The learned Counsel has taken me through the records produced and pointed out that the petitioners have deliberately delayed in filing the written statement and as such, no discretion can be exercised in favour of the petitioners. The learned Counsel further pointed out that merely because air tickets at the relevant time were at the higher side does not by itself justify any extension of time to file the written statement.

I have considered the submissions of the learned Counsels and I have also perused the records of the file. It is well settled that the period prescribed to file the written statement is not mandatory but directory. No doubt, such discretion can be exercised if any specific grounds are established justifying the delay in not filing the written statement.

Considering the submissions of the learned Counsel appearing for the petitioners that the petitioners were served in the first week of October, 2011, the period prescribed to file the written statement would extend at the most in the first week of January, 2012. Hence, up to 03.01.2012, taking note of the fact that the matter was fixed for filing the written statement on the said date, the grievance of the learned Counsel appearing for the respondent that there was no application for extension of time filed within the time prescribed cannot be accepted. But however, only aspect to be seen is whether on 03.01.2012 there was any justification for the petitioners to seek for extension of time. The petitioners have pointed out in the applications the circumstances in which they were unable to file such written statement on 03.01.2012. Considering that such allegations are not seriously disputed by the respondent, I find that the learned Judge could have given an opportunity to file the written statement and granted a short adjournment to enable the petitioners to file the written statement within some specified time in the peculiar facts of the case. The learned Judge unduly delayed in passing the impugned orders only on 02.03.2012 though such applications were filed on 03.01.2012.

Considering the facts and circumstances of the case and taking note of the fact that there are no malafides attributed to the petitioners in filing the written statement belatedly, I find that the impugned orders passed by the learned Judge refusing to extend the time to file the written statement cannot be sustained and deserves to be quashed and set aside. Considering the inconvenience caused to the respondent on account of the delay in filing the written statement, the petitioners are liable to pay costs to the respondent herein. Such costs are quantified at Rs.10,000/-. In view of the above, I pass the following :

ORDER

(i) The impugned orders dated 02.03.2012 passed by the learned Judge at Exhibit D-26, D-28 and D-30 are quashed and set aside.

(ii) The petitioners are permitted to file the written statement subject to payment of costs of Rs.10,000/- to the respondent as condition precedent.

(iii) Rule is made absolute in above terms.

(iv) The petition stands disposed of accordingly.