R.D Dhanuka, J.:— Admitted. Counsel appearing for respondent Nos. 1 to 4, 8 to 28, 30, 32 to 53 waives service. Appellants have already deleted respondent Nos. 5(a) to 5(c), 6(A) to 6(F), 7, 29, 31 and 54 to 65 from the title of the Appeal Memo. By consent, heard finally.
2. This is an Appeal against the dismissal of Notice of Motion taken out by the appellants [original defendant Nos. 1(A), 1(B) and (1F)] which was for condonation of delay in taking out Notice of Motion and for taking the Written Statements on their behalf on the record of the suit and for allowing the appellants to file their Written Statement in Suit No. 1570 of 1983 which has resulted in the suit being proceeded without Written Statement against the appellants [appellants defendant Nos. 1(A), 1(B) and (1F)]. Parties described in cause title of the plaint are described in this appeal in the later part of this Judgment.
3. Defendant Nos. 1(A) to (1F) are legal heirs of one Mr. Bitesh Hanumantrao Sagar, original defendant No. 1. Defendant Nos. 1(A) to 1(F) were brought on record after demise of defendant No. 1 as his legal heirs sometimes in the year 2002. Respondent Nos. 1(A) to (1F) in this Appeal are original plaintiffs and have filed a suit for declaration that agreement dated 5th April, 1974 as modified by the Agreement dated 11th November, 1978 and the agreement incorporated in the Consent Terms dated 28th January, 1981 and two Powers of Attorney on 13th November, 1978 have been duly and validly terminated. It is the case of the plaintiffs that they are the lessor of the plot of land which was leased out to defendant No. 1 for the purpose of development. Some of the defendants in the said suit have already filed Written Statements on 24th January, 2007. The aforesaid suit appeared on the Board of S.J Vazifdar J., on 13th July, 2007 under the caption “For want of Written Statement”. The matter appeared on Board on 31st July, 2007 and 14th September, 2007 under the caption “Undefended suits for ex parte decree”. The matter was thereafter shown on Board for hearing and final disposal on 15th October, 2007 and 31st March, 2008. On 7th April, 2008, S.C Dhannadhikari, J. framed issues in the aforesaid suit. None appeared for defendant Nos. 1(A) to 1(F). The plaintiffs through their Learned Counsel prayed that a decree be passed against defendant Nos. 1(A) to 1(F) for want of Written Statement by invoking the provisions of Order 8, Rule 5 sub-rule (2) read with Order 8, Rule 10 of the Code of Civil Procedure. From the perusal of the Order dated 7th April, 2008 it is clear that no such decree came to be passed as prayed by the plaintiffs on 7th April, 2008 or thereafter though the matter appeared on Board from time-to-time.
4. Defendant Nos. 1(A), 1(B) and (1F) took out Notice of Motion bearing No. 978 of 2011 on 28th March, 2011 praying for condonation of delay if any in taking out Notice of Motion and for taking the Written Statement on their behalf on the record of the suit. Plaintiffs filed an affidavit-in-reply to the said Notice of Motion opposing the reliefs as prayed by the defendant Nos. 1(A), 1(B) and (1F). The Learned Single Judge by an Order dated 21st April, 2011 dismissed the said Notice of Motion holding that initially the allegation of the defendant Nos. 4 to 49 was that the plaintiff and defendant No. 1 were in collusion. It was observed that the position seems to have changed now and that may be the reason why the Applicants who have been brought on record in the year 2002 have filed the present Notice of Motion in the year 2011 for taking their Written Statement on record. It is held that no case for grant of reliefs sought in the Notice of Motion is made out. The Learned Single Judge held that the instant case could be governed by the legal position prevailing prior to the amendment in the year 2002 in the Code of Civil Procedure, 1908 which is more rigorous than the one which is introduced by the amendment. It is further held that assuming that the Applicants who are the heirs of the original defendant No. 1 are brought on record in the year 2002 that the application would be governed by the amended provisions of the Code of Civil Procedure. The Learned Single Judge distinguished some of the Judgments cited by the defendant Nos. 1(A), 1(B) and 1(F) in support of their plea that the delay in taking Notice of Motion be condoned and their Written Statement be taken on record.
5. The Learned Senior Advocate Shri P.K Dhakephalkar appearing for the defendant Nos. 1(A), 1(B) and (1F) contended that the said defendants were under bona fide belief and were under the impression that the Written Statement on behalf of original defendant No. 1 had been already filed in the suit. The said defendants came to know in the second week of January, 2011 when the Appeal filed by the flat purchasers came up for hearing and son of defendant No. 1 enquired with the lawyer to furnish copy of the Written Statement. The Learned Counsel contended that at that stage the Learned Advocate representing his client informed that the Written Statement was not filed. Defendant No. 1 thereafter immediately contacted his new advocate Mr. Narvekar and instructed him to draft Written Statement on behalf of the defendants as well as his heirs whose names were brought on record. The Learned Counsel pointed out that defendant No. 1 is a cancer patient and had been suffering from last several years and is required to take medical treatment regularly. The said defendants were under bona fide belief that the necessary steps had been taken by the advocate appointed by late husband of defendant No. 1(A). The Learned Counsel contended that the Advocate now representing the defendant Nos. 1(A), 1(B) and (1F) has drafted the Written Statement and the same has been declared by them. Shri Dhakephalkar contended that these defendants have substantial defence in the suit and therefore the Written Statement be taken on record. The Learned Counsel contended that delay in filing the Written Statement was not intentional.
6. Shri Dhakephalkar, the Learned Senior Counsel also contended that the provisions of Code of Civil Procedure referred by the Learned Single Judge were not applicable as Bombay High Court being a Chartered High Court was governed by the Bombay High Court (Original Side) Rules, 1980: The Learned Counsel contended that therefore reliance placed by the Learned Single Judge on such provisions while dismissing the Motion is contrary to the judgment of the Apex Court which has been followed by this Court in several matters. The Learned Counsel contended that for the reasons setout in the affidavit in support of the Notice of Motion, the Court should take lenient view and defendants be allowed to defend suit by filing written statement upon such terms and conditions as this Court may deem fit. The Learned Counsel appearing on behalf of defendant Nos. 1(A), 1(B) and (1E) assured this Court that if an opportunity to file Written Statement is granted, the said defendants would cooperate with the plaintiffs in disposal of the suit expeditiously and would not seek any adjournment unnecessarily.
7. The Learned Counsel Shri Dhakephalkar placed reliance on the Judgment of this Court in the case of Saga Department Stores Limited… v. Falak Home Developers Pvt. Limited…., reported in 2008 (7) Mh.L.J 748 : 2008 (6) Bom.C.R 59 and Judgment in the case of Mont Blanc Properties and Industries Ltd. v. Mont Blanc Co-operative Housing Society Ltd., reported in 2009 (2) Bom.C.R 505.
8. Per contra, the Learned Advocate Shri Joaquim Reis appearing for the plaintiffs strongly opposed this Appeal filed by the defendant Nos, 1(A), 1(B) and (1F) on the ground that there is gross delay in filing the Written Statement as the defendant No. 1 himself during his lifetime though Writ of Summons was served on defendant No. 1 on 20th May, 1985, did not file Written Statement till his death. The Learned Counsel contended that the Chamber Summons for bringing the legal heirs of original defendant No. 1 came to be made absolute on 16th February, 2002 to the knowledge of defendant Nos, 1(A), 1(B) and (1F) and in spite thereof, no steps were taken by the defendants to file any pleadings in the nature of Written Statement. The Learned Counsel farther contended that the said parties in another suit bearing No. 3091 of 2008 in which an application was made by the plaintiffs and on such application, the plaint filed against them was rejected. The plaintiffs had brought these facts to the notice of this Court as far back as in the year 2010 that the 1st defendant had not filed any Written Statement and therefore, suit should proceed ex parte. The plaintiffs disputed the averment of defendant Nos. 1(A), 1(B) and (1F) that they came to know for the first time in the month of January, 2011 about non-filing of Written Statement by original defendant No. 1. The Learned Counsel further contended that the issues have been already finalised as far back on 7th April, 2008 and therefore no liberty should be granted to defendant Nos. 1(A), 1(B) and (1F) to file Written Statements at this stage. The Learned Counsel also placed reliance on the Judgment of the Apex Court in the case of Kailash v. Nanhku, reported in 2005 (2) Mh.L.J (SC) 775 : (2005) 4 SCC 480 : AIR 2005 SC 2441 and Judgment of Apex Court in case of Balwant Singh v. Jagdish Singh, reported in (2010) 8 SCC 685. In Rejoinder, the Learned Counsel Shri Dhakephalkar distinguished the Judgment of the Hon'ble Apex Court cited by Senior Counsel Shri Joaquim Reis. Having heard the Learned Counsel for the parties, we have given anxious consideration to the rival submissions.
9. In case of Kailash v. Nanhku (supra), the Apex Court was dealing with the provisions of Representation of the People Act 53 of 1951, Order 8, Rule 1 of Code of Civil Procedure and also the rules framed by High Court governing the procedure of the trial before the Allahabad High Court, in exercise of powers conferred by Article 225 of the Constitution of India. After considering the Judgment of Apex Court in case of Iridium India Telecom Ltd. v. Motorola Inc.., 2005 (1) Mh.L.J (SC) 678 : (2005) 2 SCC 145 : AIR 2005 SC 514 : (2005) 1 JT (SC) 50 and rules 5 and 12 framed by the Allahabad High Court in paragraphs 21 and 27 of the said Judgment, it is held as under:—
21. We are, therefore, of the opinion that, in view of Rules 5 and 12 framed under Article 225 for purposes of the Special Act, the High Court is not powerless to extend the time for filing the written statement simply because the time limit for filing the written statement within the allowance permitted by the Proviso to Order VIII, Rule 1 of the Civil Procedure Code has come to an end.
27. All the rales of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the Civil Procedure Code or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice.
10. The Apex Court in the said Judgment also held that the provisions under Order VIII, Rule 1 has to be construed as directory and not mandatory. The Apex Court in the said Judgment directed the High Court to take the Written Statement on record subject to payment of Rs. 5,000/- by way of cost by the defendants therein.
11. In our view, reliance placed by the Learned Counsel appearing for the plaintiffs on the Judgment in the case of Kailash v. Nanhku (supra) is misplaced. The said Judgment does not assist the plaintiffs. On the contrary, the Apex Court has held that no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. As far as the Judgment in the case of Balwant Singh v. Jagdish Singh (supra) relied upon by the plaintiffs is concerned, the Apex Court was dealing with a case of filing an application for bringing legal representatives on record under Order 22, Rule 9. In the matter before the Apex Court the Applicant who had taken out the application seeking condonation of delay and for setting aside abatement order did not explain delay properly and therefore the Apex Court refused to grant any reliefs to the Applicants therein. The facts of this case are totally different. In our view, the reliance thus placed by the plaintiffs on the Judgment of the Apex Court Balwant Singh v. Jagdish Singh (supra) is also of no assistance to the plaintiffs and is misplaced.
12. In case of Iridium India Telecom Ltd. v. Motorola Inc.., reported in 2005 (1) Mh.L.J (SC) 678 : (2005) 2 SCC 145 : AIR 2005 SC 514, the Apex Court has considered the issue whether the provisions of Order VIII, Rule 1 applied to the Original Side of Chartered High Court. Under section 129 of the Code of Civil Procedure, 1908, the High Court has been empowered to make rules with regard to the regulations of their own procedure. section 129 of the code reads as under:—
“129. Power of High Courts to make rules as to their original civil procedure - Notwithstanding anything in this Code, any High Court not being the Court of a Judicial Commissioner, may make such rules not inconsistent with the Letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.”
13. Paragraphs 11 and 37 of the said Judgment reads as under:—
11. Section 129 begins with a non obstante clause and seems to suggest something to the contrary. At least as far as Chartered High Courts are concerned, section 129 seems to invest them with the power to make rules with regard to the regulation of their own procedure, which may be inconsistent with the Civil Procedure Code itself, as long as such rules are consistent with the Letters Patent establishing the High Courts. The section also ends with the words: “nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code”
(emphasis ours).
37. Taking into account the extrinsic evidence, i.e, the historical circumstances in which the precursor of section 129 was introduced into the 1882 Code by a specific amendment made in 1895, we are of the view that the non obstante clause used in section 129 is not merely declaratory, but indicative of Parliament's intention to prevent the application of the Civil Procedure Code in respect of civil proceedings on the original side of the High Courts.
14. This Court has framed rules called as High Court (Original Side) Rules, 1980 in exercise of powers under section 129 of the code. The Learned Counsel appearing for defendant Nos. 1(A), 1(B) and 1(F) was right in placing reliance on the Judgment of Saga Department Stores Limited… v. Falak Home Developers Pvt. Limited…. (supra). The Division Bench in the said Judgment has dealt with rules 58 to 91 and 265 of the rules framed by this Court. In para (4) of the said Judgment, the Division Bench has set out Rule 265 and has dealt with it as under:—
265. Power of Court or Judge to enlarge or abridge time.— The Court or the Judge in Chambers shall have power to enlarge or abridge the time appointed by these rules or fixed by any order for doing any act or taking any proceedings, upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed.”
The language of Rule 265 indicates the wide discretion that the framers of the Rule intended to vest in the Court. Wherever the time is prescribed under these Rules or time or date is fixed for doing any act, the Court may enlarge the time upon such terms and as the justice of the case may require even if the application was not filed till the expiration of the specified time.
15. After considering the rules framed by this Court, the Division Bench of this Court in the said Judgment in para (6) held as under:—
6. The expression ‘Justice of the case may require’ is equivalent to ‘in the interest of justice’ or ‘ends of justice’. Thus, the paramount consideration under the scheme of the rules is to achieve justice rather than frustrate rights of the parties on technical ground, particularly when the rights of the other party can be protected by such terms as may appear in the opinion of the Court to be just and proper. The High Court, Original Side Rules, which will prevail and take precedence over the provisions of the Civil Procedure Code, also indicate that the provisions under the Rules are not as stringent as the provisions of the Code in regard to the defaults. The scheme of the High Court, Original Side Rules is that where the written statement is not filed as contemplated under Rule 74, the course is not provided that a decree will follow as a natural consequence or automatically. The Court is still to fix the suit as undefended and then pass such orders as it may deem fit and proper in the facts of the case including requiring the plaintiff to prove his claim. This may result in passing of a judgment and a decree but even before that stage, the defendant has been given liberty to take out a notice of motion for permission to file written statement and taking such other pleas in the suit which can be allowed by the Court subject to such terms and conditions as may be deemed fit and proper in terms of Rule 91 of the said Rules. Interestingly, the provisions of Rule 265 are in addition to and not in derogation to the relevant provisions contained in Rules 88 to 91. Rule 266, in fact, completely dilutes the impact of specified period provided under other rules where the parties by consent in writing can enlarge the time for amending or filing pleadings or of filing and delivery of documents. This could be done without application to the Court or even the Judge in chambers. It is apparent that the period indicated in these rules is directory and not mandatory. It is directory even to the extent of providing different options to the Court and the parties can even get liberty to enlarge the time fixed by consent.
16. In para 8 of the said Judgment, the Division Bench has held as under:—
8. Reference can also be made to the judgment of the Supreme Court in Salem Advocate Bar Association, T.N v. Union of India, 2005 DGLS (soft) 489 : (2005) 6 SCC 344 : AIR 2005 SC 3353 where the Supreme Court with emphasis enunciated the law that the word “shall” appearing in proviso to Order VIII, Rule 1 on its plain reading may appear to be mandatory but after examining it in its true context and having regard to the intention of the legislature, the same can be construed as directory. Discretion of the Court to extend the time shall not be used so frequently and routinely as to nullify the period fixed by Order 8, Rule 1, but wherever it is necessary the Court can exercise the power as there is no restriction in Order 8, Rule 10 that after expiry of the 90 days, further time cannot be granted by the Court. The Court has wide powers to make such order in relation to the Suit as it thinks fit. Use of this expression sufficiently indicate that the power of the Court is not restricted by the provisions of the Code. It also deserves to be noticed that the provisions of Order VIII, Rule 1 requires the defendant to file the Written Statement within 30 days and in terms of the proviso not later than 90 days from the date of service of summons. As far as Bombay High Court is concerned, this provision has been amended and in terms of the provisions of law applicable to Bombay High Court, the defendant may and if so required by the Court shall within such time as may be specified in this behalf and within such extended time as the Court may permit present Written Statement of his defence after serving a copy thereof on the plaintiff or his Pleader. Ordinarily, such period shall not exceed four weeks which would not be extended except for reasons to be recorded in writing. Thus, even in terms of this provision, the extension of time is a matter in the discretion of the Court and could be granted for justifiable reasons recorded in writing.
17. After following the principles laid down by the Apex Court in the case of Iridium India Telecom Ltd. v. Motorola Inc.., the Division Bench of this Court in the said Judgment and in the Judgment of this Court in Tardeo Properties Pvt. Ltd. v. Bank of India, reported in 2007 (5) Bom.C.R 557 held that the provisions of original side would be applicable and have precedence over the Rules of Civil Procedure Code and there is no case for pronouncing a judgment merely because there is failure on the part of the defendant to file a written statement. It is held that it would be available to the Court to ask the plaintiff to prove the case before the pronouncement of the judgment.
18. Judgment in the case of Saga Department Stores Limited… v. Falak Home Developers Pvt. Limited…. (supra) has been followed by the Division Bench of this Court (comprising of Swatanter Kumar, C.J the then Chief Justice and S.A Bobde, J.) of which Division Bench one of us (S.A Bobde, J.) was a party in case of Mont Blanc Properties and Industries Ltd. v. Mont Blanc Co-operative Housing Society Ltd. After following the judgment in the case of Saga Department Stores Limited… v. Falak Home Developers Pvt. Limited…. (supra) the Division Bench in paragraphs 4 to 6 of the said Judgment held as under:—
4. Having regard to the observations made by this Court and in the circumstances of the present case, we find that denying the defendants an opportunity to file written statement would frustrate the rights of the parties, rather than achieve justice. As indicated earlier, the circumstances would have been quite different if the Court intended to pass a decree in favour of the plaintiffs after calling upon the plaintiffs to prove their claim.
5. In this case, even though the matter was on board for filing written statement as early as 26-6-1998 when the Court granted two weeks' time for the purpose and even though the Court passed an order directing that the suit should proceed ex parte, no such proceedings took place. It appears that, in fact, no order for proceeding ex parte under Rule 89 of the Bombay High Court (Original Side) Rules, hereinafter referred to as the “Rules”, was made till 17-6-2008. It is also relevant to note that the plaintiffs did not take out any application for issue of a Notice of Motion for a judgment for want of written statement at any time after 26-6-1998 as provided by Rule 90 of the Rules.
6. In the circumstances of the case, we are of opinion, that denying an opportunity to the defendants to file the written statement would frustrate their rights. However, we cannot be oblivious of their negligence in not filing the written statement within the time stipulated by law and by the Court. In the circumstances of the case, we consider it appropriate to permit them to file written statement, however, on payment of costs in the sum of Rs. 50,000/- (Rupees Fifty Thousand only) to the plaintiffs. Order accordingly.
19. We are, therefore, of the view that the Learned Single Judge was not right in holding that the application filed by defendant Nos. 1(A), 1(B) and 1(F) would be governed by the amended provisions of the CPC or in the alternative governed by the provisions of unamended Civil Procedure Code prior to 2002. The Learned Single Judge has not considered the Original Side Rules framed by the High Court with regard to the regulations of their own procedure and more particularly in this case regarding filing and taking written statement on record. In our view such rule referred above would prevail and take precedence over the Civil Procedure Code and such rules are not as stringent as the provision of the Code in regard to the defaults.
20. We are of the view that defendant Nos. 1(A) widow and is a cancer patient and being 70 years old there is no reason to disbelieve her averment that she was under the bona fide belief that she was suffering from the cancer and was required to take medical treatment regularly and was under the belief that her husband would have filed Written Statement and/or necessary steps would have been taken by advocate appointed by her husband. In our view, defendant Nos. 1(A), 1(B) and (1F) have explained delay in taking out Notice of Motion for seeking liberty to file Written Statement on record. In any event, though the suit is of the year 1983, the matter was placed on board for want of Written Statement on 13th July, 2007 and thereafter from 14th September, 2007 under the caption “Undefended suit for ex parte decree”, no decree came to be passed by this Court so far. Though the plaintiff had made oral application on 7th April, 2008, when issues were framed by this Court for passing the decree under Order 8, Rule 5 sub-rule (2) read with Order 8, Rule 10 of the Code of Civil Procedure, no order was passed on such oral application. No steps have been taken by the plaintiffs to file separate Notice of Motion for a judgment for want of written statement at any time as provided by Rule 90.
21. In our view, denying the opportunity to the defendant Nos. 1(A), 1(B) and (1F) to file written statement would frustrate the rights rather than to achieve justice on technical grounds when rights of the plaintiffs can be protected by imposing cost on the defendants and by expediting the hearing of suit. In view of the facts that no decree has been passed against defendant Nos. 1(A), 1(B) and (1F) and an application for condonation of delay and for taking written statement on record having already been filed by defendant Nos. 1(A), 1(B) and (1F) for praying for discretionary relief, end of justice would meet if we give an opportunity to the defendant Nos. 1(A), 1(B) and (1F) to file Written Statement and to defend suit on merits in the facts and circumstances of this case. However, we cannot be oblivious of the negligence on the part of defendant Nos. 1(A), 1(B) and (1F) in not filing written statement within a time stipulated by the Court. In the circumstances, we permit defendant Nos. 1(A), 1(B) and (1F) to file Written Statement however on the payment of cost in the sum of Rs. 75,000/- to the plaintiffs.
22. We accordingly pass the following order:—
1. Appeal No. 329 of 2011 filed is allowed.
2. Notice of Motion No. 978 of 2011 in Suit No. 1570 of 1983 is allowed in terms of prayer clauses (a) and (b). Defendant Nos. 1(A), 1(B) and (IF) are permitted to file Written Statement within two weeks from the date of this order upon payment of cost in the sum of Rs. 75,000/- to the plaintiffs.
3. Hearing of Suit No. 1570 of 1983 is expedited and to be disposed of as early as possible and preferably within six months from the date of this order.
4. defendant Nos. 1(A), 1(B) and (1F) are directed to co-operate in expeditious disposal of the suit.
5. Appeal is disposed of.
6. In view of the final order passed, as aforesaid, Notice of Motion No. 1773 of 2011 does not survive and is disposed of accordingly.
At this juncture, Mr. Vora instructed by M/s Markand Gandhi and Co., the learned counsel for respondent Nos. 1 to 4 made oral application for stay to the operation of this order. However, we are not inclined to grant stay. Hence, the oral application is rejected.
Appeal allowed.