SHAHIR PATIL Vs. AMRUTH JAGADE

JUDGEMENT

(1.) EVEN though the matter is listed for preliminary hearing, with consent of both the counsel, this matter is taken up for final disposal.

(2.) THE matter arises in the following manner : Plaintiff -respondent has filed a suit for declaration of title and for injunction in respect of the suit schedule property in O. S. No. 403/97. The said suit was accompanied by an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure for injunction pending disposal of the case. It appears, the learned Trial Judge granted an order of injunction as against which the petitioner -defendant filed an appeal in M. A. No. 70/79 on the file of the Civil Judge, Gulbarga. The records of the suit were called for by the Appellate Court and eventually the appeal filed by the petitioner was dismissed. The records were sent back to the Trial Court. The defendant -petitioner was called upon to file his written statement on 16 -11 -2004. But, however, it appears the defendant -petitioner could not file his written statement on the said date, but filed it on the next adjourned date i.e., on 19 -11 -2004. The said written statement was filed along with an application explaining the delay and under what circumstances he could not file his written statement within the stipulated time. Annexure -B is the copy of the application. The learned Civil Judge pursuant to Annexure -D has rejected the application as well as the written statement on the ground that no justifiable reasons are available to allow the said application. According to him, the defendant -petitioner was served in the suit sometime in the year 1997 and the written statement is filed in the year 2004. He was of the opinion that the time granted under Order 8, Rule 1 of Code of Civil Procedure is mandatory in nature and Courts have no power to extend the time to file the written statement.

(3.) MR . Naragund, learned counsel for the plaintiff -respondent seriously objects to the assertions of the petitioner. He would submit that the laches on the part of the defendant -petitioner in filing the written statement within the stipulated time as contemplated under Order 8, Rule 1 of the Code of Civil Procedure cannot be condoned. He submits that the defendant -petitioner was served with the summons in the proceedings sometime in the year 1997 and the fact that he was pursuing the appeal does not necessarily enlarge the time in filing the written statement. According to him, the delay has to be reckoned from the date of service of summons and the said enormous delay cannot be excused.