Gyanchand Roopchand Madhani v. Babasaheb Ramchandra Shinde & Ors.

Mr.A.R.Pande for the petitioner Mr.Kirit Mehta for respondent nos.1 to 3 CORAM :A.S.OKA,J. DATE : MARCH 8, 2010 P.C. 1 Heard the learned counsel for the petitioner and the learned counsel for respondent nos.1 to 3 who are the original plaintiffs. Considering the narrow controversy involved, the petition is taken up for final disposal. 2 The petitioner is the second defendant. The petitioner could not file the written statement within the time stipulated by Rule 1 of Order VIII of the Code of Civil Procedure,1908. Therefore, a Notice of Motion was taken out by the petitioner seeking condonation of delay in filing the written statement and for taking the written statement on record. 3 I have heard the learned counsel for the petitioner. He invited my attention to the assertions made in the affidavit-in-support. He pointed out that sufficient reasons were set out in the affidavit in support and the delay in filing the written statement has been explained. The learned counsel for the respondent nos.1 to 3 supported the impugned order. 4 The trial Court passed order on 18th January 2008 directing that the suit will proceed without the written 2 statement of the petitioner. The Notice of Motion was taken out on 19th June 2009. In the affidavit in support of the Notice of Motion and in particular , in paragraphs 3 to 5 reasons have been assigned as to why there is a default on the part of the petitioner. Considering the reasons set out and considering the fact that amended Rule 1 of Order VIII of the Code of Civil Procedure,1908 is held to be directory, the trial Court ought to have exercised discretion by permitting the written statement to be filed. The 1st to 3rd respondents could have been compensated by ordering the petitioner to pay exemplary costs. Hence, the petition must succeed. The amount of costs is quantified at Rs.10,000/- 5 Hence, I pass the following order : i) Impugned Judgment and Order dated 19th December 2009 is quashed and set aside. ii)Notice of Motion no.818 of 2009 is made absolute in terms of prayer clauses (a) and (b) thereof subject to the petitioner paying costs of Rs.10,000/- to the respondent nos.1 to 3 within six weeks from today. Payment of costs will be a condition precedent. iii)Petition is allowed accordingly. JUDGE