Communidade of Colvale vs Seraphino Menezes, Mr. Raghunath Bhangle, Hindustan Petroleum Corporation Ltd. and Administrator of Communidades

N.A. Britto

Heard. The petitioner herein is defendant no. 3 in RCS no. 125/09/F. This petition has been filed against the Order dated 21.1.2010 by which the learned Civil Judge, Junior Division, has rejected the application of defendant no. 3 to condone the delay and take written statement on record. The said application was not objected to by the plaintiff, and the objection it appears, was taken by the defendant nos. 1 and 2.

The petitioner/defendant no.3 is required to be served through the Administrator of Communidade. The defendant no. 3 on or about 22.10.2009 was served with the copy of the application for amendment filed by the plaintiff. On 27.10.2009 defendant no. 3 filed an application stating that notice of the suit was handed over to them a few days back during the attorney''s visit to the administrator''s office and sought time of 30 days to file the written statement. This was granted by the Court. On 12.11.2009 the defendant no. 3 again filed an application, making similar averments and sought time of 30days. Defendant no. 3 also stated that 90 days period had not expired. This application was also granted; the same having not been objected to.

On 1.12.2009 the defendant no. 3 filed another application, this time stating that the defendant no. 3 was originally served on 18.8.2008 and was served with the amendment application on 22.10.2009. Defendant no. 3 further stated that they had filed written statement and sought extension of time under bonafide belief that the time was extended upto 12.12.2009 and they were within the extended period and moreover they too had made out good reasons in the aforesaid two applications for extension of time, and therefore, that delay, if any, be condoned and written statement be taken on record. As already stated this application was also not objected to by the plaintiff and it appears to have been objected to by the defendant nos. 1 and 2, and therefore, refused.

It is well settled law that the provisions of Order 8, Rule 1, are directory in nature and that a defendant may be permitted to file written statement after expiry of period of 90days only in exceptional situation.(See Mohammed Yusuf Vs. Faij Mohammad and Others, ). Although defendant no. 3 stated in their application dated 1.12.2009 that defendant no. 3 was served on 18.8.2008, in their previous applications they had stated that they were served when defendant no. 3 visited the office of the Administrator. It is quite possible that 18.8.2008 is the date when summons were received in the office of Administrator. The only record of service produced is of the service of amendment application on 22.10.2009 that too by affixation on the office of the defendant no. 3. On 12.11.2009 defendant no. 3 was indeed granted time of 30days and that was with no objection of the plaintiff as well as defendant nos. 1 and 2 and therefore defendant no. 3 could not have been wrong in believing that it had extended time upto 12.12.2009.

Defendant no. 3 is an institution. There was no clear proof that the summons had reached in the hands of the defendant no. 3 on 18.8.2008. Although a Communidade is required to be served through the Administrator, the date of service on the Administrator cannot be treated as a date of service on the Communidade. The plaintiff had no objection for extension of time. Defendant no. 3 had sought time twice before and were granted time which would have expired on 12.12.2009. These were certainly exceptional circumstances which the learned trial Court was bound to take into consideration. Moreover, defendant no. 3 had filed the written statement alongwith the application before the extended time. The learned Trial Court does not appear to have exercised the discretion correctly.

This Writ Petition therefore succeeds. The impugned Order dated 23.1.2010 is hereby set aside. The application filed by defendant no. 3 is granted. Written statement filed by defendant no. 3 be taken on record. Writ Petition disposed of accordingly with no Order as to costs.