AI Structured Summary
Not yet generated for this judgment
Judgment
C. V. Bhadang, J
Rule made returnable forthwith. The learned Counsel for the respondents waives service. Heard finally by consent of parties.
By this petition, the petitioner, who is the original defendant, is challenging two orders, both dated 20.03.2019, passed by the learned Trial Court in
Regular Civil Suit No. 226/2018/C. By the first order, an application (Exhibit-6) filed by the respondents/plaintiffs, under Order XV-A of the Code of
Civil Procedure (CPC, for short), has been allowed, directing the petitioner to deposit Rs.10,000/- per month as occupation charges, while by the
second order, an application (Exhibit-10) filed by the petitioner, for extension of time to file written statement, has been rejected.
Undisputedly, there is a previous suit filed by the petitioner against the respondents being Regular Civil Suit No. 128/2016/D, in which, the petitioner
is inter alia seeking mandatory as well as prohibitory injunction, against the respondents. The petitioner is seeking a direction to the respondents to
restore the water supply and electricity connection in the suit premises and for restraining the respondents or anybody on their behalf from interfering
with the suit premises. Undisputely, in the said suit, the respondents have raised a couter claim inter alia for declaration that the leave and license
agreement dated 22.03.2016 has expired by efflux of time. It is further a matter of record that the respondents had filed an application in the said suit
also under Order XV-A of CPC and that application has been allowed, directing the petitioner to deposit Rs.10,000/- per month as occupation charges.
The respondents subsequently filed Regular Civil Suit No. 226/2018/C, for eviction and possession of the suit premises, against the petitioner. The
record discloses that the suit summons in the said suit was served on the petitioner on or about 10.01.2019 and the returnable date was 19.01.2019. It
is not disputed that the notice was not accompanied with the copy of the plaint. The petitioner appeared in the suit on 19.01.2019 and sought time to
file written statement on the ground that the copy of the plaint was not accompanying the suit summons. The learned Trial Court granted time till
20.02.2019. However, prior to the said date, the petitioner filed an application on 16.02.2019, seeking time and the suit was adjourned to 25.02.2019.
On that day, the learned Trial Court granted extension till 20.03.2019, which incidentally was the 60th day from the first returnable date. The petitioner
filed an application (Exhibit-10) for further extension of time, on the ground that the Advocate for the petitioner was out of station and was unable to
prepare the written statement, which has been rejected by the learned Trial Court by the impugned order dated 20.03.2019, on the ground that there
were three extensions granted i.e. on 19.01.2019, 16.02.2019 and again on 25.02.2019.
I have heard Mr. Amonkar, the learned Counsel for the petitioner and Ms. Menezes, the learned Counsel for the respondents. Perused record.
As noticed earlier, it is not disputed that the suit summons was not accompanied with the copy of plaint. Thus, the petitioner had no option than to
seek time on the first date i.e. on 19.01.2019. Thus, time granted on 19.01.2019, cannot be said to be by way of extension, as on that date the
petitioner was precluded from circumstances beyond his control, from filing the written statement. On 19.01.2019, time was granted by the learned
Trial Court till 20.02.2019. However, prior thereto, the petitioner had filed an application on 16.02.2019 for extension. It appears that the matter was
fixed on 20.02.2019, on which date, the Presiding Officer was on leave and therefore, the suit was fixed on 25.02.2019. Thus, no extension can be
said to be have been granted, as such, on 16.02.2019 and on 20.02.2019. Thus, for all practical purpose, on 25.02.2019 the first extension was sought,
which was granted till 20.03.2019. The proviso to Rule 1 of Order VIII of CPC is directory and not mandatory and in an appropriate case, the Trial
Court can permit the defendant to put his defence even beyond the stipulated period (see the case of Kailash Vs. Nanhku & Others 2005 4 SCC 480).
The learned Counsel for the respondents, in all fairness, submitted that this Court may pass appropriate orders, in the context of the circumstances
as obtaining from the record.
Considering the overall circumstances, I find that both the orders dated 20.03.2019, need to be set aside, granting opportunity to the petitioner to file
the written statement in the suit and reply to the application under Order XV-A of CPC. This will be subject to the petitioner depositing costs of
Rs.5,000/-payable to the respondents, within two weeks from today.
In the result, the following order is passed:
O R D E R
(i) The petition is allowed.
(ii) The impugned orders dated 20.03.2019, below application (Exhibit-6) and application (Exhibit-10), are hereby set aside.
(iii) The petitioner is permitted to file written statement in the suit, as well as reply to the application (Exhibit-6), within two weeks from today, subject
to deposit of costs of Rs.5,000/-payable to the respondents.
(iv) Rule is made absolute in the aforesaid terms.