Dennis Cunha vs Mahananda

A.S. Bopanna, J.—The petitioner is before this Court assailing the order dated 26.09.2012 passed on I.A. No. 4 in O.S. No. 11/2010.

The petitioners herein are the second and third defendants in O.S. No. 11/2010 (old number O.S. No. 352/1999). In the said suit, the second defendant (petitioner No. 1 herein) has filed an application seeking condonation of delay in filing the written statement. The application is registered as I.A. No. 4. The Court below has dismissed the application by the order dated 26.09.2012. The petitioner is therefore before this Court against the said order.

Learned counsel for the respondents while seeking to sustain the order passed by the Court below would contend that the Court below taking note of the inordinate delay in seeking to file the written statement in the year 2012 though the said suit was filed in the year 1999 was justified in its conclusion. Learned counsel for the respondents would further contend that though the petitioner is seeking to make out a ground that there was certain understanding entered in the miscellaneous appeal, the same cannot enure to the benefit of the petitioner, since at the first instance itself, the petitioner was required to file the written statement when objection had been filed to the application seeking injunction.

Learned counsel for the petitioner would however contend that the need for filing the written statement has arisen only subsequent to the order being passed in M.A. No. 28/2005 and thereafter, the Commissioner submitting the report in the suit. It is therefore contended that when reasons were put forth for the delay, the Court below ought to have considered this aspect of the matter.

On the issue that the time provided under the CPC for filing the written statement, there can be no dispute that the same is only directory and not mandatory. Therefore, in the facts of each case, when there is delay in filing the written statement, the party seeking leave to file the same would have to indicate diligence on his part and also the reasons to justify the filing of the written statement belatedly. If this aspect of the matter is kept in view, in the instant case, the fact that the parties were before the Lower Appellate Court in M.A. No. 28/2005 is not in dispute. The fact that in the said appeal certain understanding had been reached between the parties is also evident from the joint memo filed therein and the order ultimately passed relegating the parties back to suit for the purpose of consideration based on the report that would be submitted by the Commissioner. The report submitted by the Commissioner thereafter in the suit is at Annexure-J to the petition. The same was filed on 22.10.2011. The reason put forth by the petitioner is that in the report of the Commissioner, reference has been made to the road existing in the property which in fact necessitated the petitioner to file the written statement and put forth his contentions as against the pleading that had been put: forth in the plaint. Thereafter, the application seeking leave to file the written statement on condoning the delay has been filed. It is also pointed out that the plaintiffs in fact have objected to the Commissioner''s report. Therefore, if the sequence of events that have flowed is taken into consideration and the need as explained by the petitioner for filing the written statement belatedly is taken note of, certainly in the instant case, when the parties are litigating with regard to the immovable properties, the contention of the petitioners should be available for the Court below to arrive at an appropriate conclusion.

In that view, I am of the opinion that the Court below in the present facts and circumstances was not justified in rejecting the request of the second defendant viz., the first petitioner herein. The order dated 26.09.2012 is therefore set aside. The application in I.A. No. 4 filed by the second defendant is allowed. The Court below is directed to receive and take the written statement filed on record and thereafter proceed with the matter in accordance with law.

With the above directions, the petition stands disposed of.