Mr. Jose Coutinho vs Mr. Arvind J. Puranik, Mrs. Vrushali A. Puranik, Communidade of Gaondongrem and The Administrator of Communidades, South Zone

A.P. Lavande, J.—Heard Mr. Lotlikar, the learned Senior Counsel for the petitioner and Mr. Kamat, the learned Counsel for the respondent Nos. 1 and 2.

Rule, by consent heard forthwith.

By this petition, the petitioner challenges the order dated 17.02.2009 passed in Regular Civil Suit No. 8/2008 passed by the Civil Judge, Junior Division, Canacona refusing to condone the delay in filing the written statement. Since the respondent No. 3 is a formal party and would not be adversely affected by the judgment, which I propose to pass, I propose to dispose of the petition although the respondent No. 3 is not served.

The respondent Nos. 1 and 2/plaintiffs filed the suit for injunction against the Jose Fernandes. The summons was served on the petitioner Jose Coutinho. The petitioner appeared before the Trial Court and pointed out that he was wrongly served. Thereafter, the respondent Nos. 1 and 2/plaintiffs filed an application for amendment seeking to substitute Jose Fernandes by Jose Coutinho, the petitioner, which amendment was allowed by the Trial Court. Fresh summons was issued to the petitioner and he was served on 12.08.2008 . On 01.12.2008, the petitioner filed an application seeking condonation of delay to file the written statement and along with the application, the petitioner filed the written statement, which was not taken on record by the Trial Court. The application for condonation of delay was opposed by the respondent Nos. 1 and 2 and by the impugned order, the Trial Court refused to condone the delay.

Mr. Lotlikar, the learned Senior Counsel appearing for the petitioner, submitted that the Trial Court has erred in holding that the petitioner was actually served on 21.04.2008 when in fact, the summons was served on Jose Fernandes and not on the petitioner. He further submitted that the reason given by the petitioner i.e. the petitioner could not file the written statement since he had engaged surveyor, who took time in preparing the report on the basis of which the written statement was filed, has not been considered by the Trial Court. He, therefore, submitted that the impugned order suffers from jurisdictional error warranting interference by this Court. The learned Counsel further submitted that serious prejudice would be caused to the petitioner if the impugned order is not set aside.

Per contra, Mr. Kamat, the learned Counsel appearing for the respondent Nos. 1 and 2 submitted that the petitioner was served on 12.08.2008 and, thereafter, on few occasions, he sought time to file the written statement, which was granted. According to Mr.Kamat, on 25.11.2008, the petitioner did not seek time to file the written statement and the matter was adjourned to 01.12.2008 on which date, the application seeking condonation of delay was filed along with the written statement. Mr.Kamat submits that absolutely no cause has been shown by the petitioner for filing the written statement beyond the statutory period permitted in terms of Order VIII, Rule 1 of Civil Procedure Code.

I have considered the submissions made by the learned Counsel for the parties and perused the record. Perusal of the impugned order discloses that the Trial Court has gone on the footing that the petitioner was served on 21.4.2008 and he had knowledge of the contents of the plaint and consequently, the conduct of the petitioner did not deserve condonation of delay. The impugned order also discloses that the Trial Court has not considered the fact that the petitioner had sought adjournment on some occasions nor the cause shown by the petitioner for filing the written statement late, has been considered by the Trial Court. The Civil Court while condoning the delay in filing the written statement, is bound to have regard to the provisions of Order VIII, Rule 1 of CPC and the judgment in this regard by the Apex Court. In the present case, in my considered opinion, the Trial Court has wrongly held that the petitioner was served on 21.04.2008. This finding is obviously incorrect since it was on account of fault of the plaintiff that one Jose Fernandes was joined as the defendant No. 1 in the suit and wrongly, summons was served on the petitioner. Moreover, the Trial Court has also not taken into consideration the cause shown by the petitioner for filing the written statement late. Similarly, the fact that the petitioner had sought time on some occasions to file the written statement, has also not been considered while passing the impugned order.

In view of the above, I deem it appropriate to quash and set aside the impugned order and remand the matter to the Trial Court to decide the application fresh after hearing the parties. Accordingly, the impugned order dated 17.02.2009 is set aside and the Trial Court is directed to decide the application afresh in terms of the observations made above. The Trial Court shall decide the application expeditiously. Rule is made absolute in aforesaid terms with no order as to costs.