RAMCHANDRA MANGESH TAMBOSKAR v. MR. ELEUTORIO MANUEL XAVIER SOARES

Mr. Valmiki Menezes, Advocate for the Petitioner. Coram:- N. A. BRITTO, J. Date:- 25th March, 2010 P.C.: Heard.

This writ petition is directed against order dated 15/04/2009 in Special Civil Suit No.115/2007/A, by which the petitioner who was defendant no.3 in the said civil suit has not been allowed to file written statement since according to the learned Civil Judge, there was no provision to extend the period of 90 days within which the defendant no.3 was required to file the written statement.

The plaintiffs, who had objected to the filing of the said written statement on 19/04/2008, have been duly served with the notice of this writ petition, but have chosen to remain absent on 18/03/2010, as well as today, and as such, Shri Menezes, the learned Counsel appearing on behalf of the petitioner/defendant no.3 has been heard in the matter.

There is no dispute that notice/summons were ordered to be issued to the defendants in the said civil suit on 12/12/2007 returnable on 19/01/2008. According to Shri Menezes, the learned Counsel appearing on behalf of the petitioner, the petitioner received the said summons/notice on 28/12/2007 and as 19/01/2008 happened to be a court holiday, the petitioner appeared before the Court on 21/01/2008 and filed an application for adjournment, which was not objected to by the plaintiffs and was accordingly granted by the learned trial Court. The case was again taken up on 8/02/2008 and again the petitioner/defendant no.3 sought adjournment, which was granted without any objection from the plaintiffs and, accordingly, the case was fixed on 12/03/2008.

On this day also, the plaintiffs gave their no objection to the application filed by the petitioner/defendant no.3 and, as such, the case was adjourned to 28/03/2008.

On 28/03/2008, the Presiding Officer of the said Court was on a commuted leave. The case was accordingly adjourned on 19/04/2008. On 19/04/2008, the petitioner/defendant no.3 filed an application stating that the written statement was not ready as his advocate had to proceed on 26/03/2008 to Mumbai on account of medical treatment. Counsel submits that the written statement was filed along with the said application. The said application was objected to on behalf of the plaintiffs and, accordingly, the impugned order came to be made. The facts stated in the said application, it appears, were not contested by the plaintiffs. The provisions of Order 8, Rule 1 have been stated by the Apex Court to be directory. In Aditya Hotels (P) Ltd. V/S Bombay Swadeshi Stores Ltd. & Others (AIR 2007 SC 1574) the Apex Court has stated that extension can be granted by way of exception and for reasons assigned by the defendant and also recorded in writing by the Court to its satisfaction.