FCB ULKA ADVERTISING LTD Vs. SUNITI VERMA

JUDGEMENT

(1.) Heard the learned counsel for the parties. The appeal is filed against the order dated 22.7.2004 passed by the learned Single Judge dismissing I.A. No.3744/2004 filed by the appellant, which in substance was for review of the order dated 19.8.2002, whereby the learned Single Judge had held that the Court does not have any power to permit filing of written statement after 90 days.

(2.) Being aggrieved by the aforesaid order, the present appeal has been filed and while issuing notice, an interim order was passed for staying the operation of the impugned order. As a result, proceedings before the learned Single Judge stand stayed w.e.f. 29.9.2004

(3.) We find that a suit has been filed by the respondent herein for recovery of amount of Rs.32,55,206.00 paise on account of mesne profits and interest. The appellant although required to file it's written statement, did not file the same. In the meantime, the provision of Order VIII Rule 1 of the Code of Civil Procedure, 1908 was amended and the provision for filing the written statement has been made more stringent. Statutory time has been prescribed for filing of written statement under the amended provision. However, the aforesaid provision came to be interpreted by the Supreme Court in the case of Kailash versus Nanhku AIR 2005 SC 2441 and other cases. In the said decisions, it has been held by the Supreme Court that under exceptional circumstances and after recording reasons, Courts can extend time for filing the written statement beyond 90 days. In this case, the aforesaid aspect was not considered by the learned Single Judge. It has not been examined whether or not the appellant has made out an exceptional case and grounds for extension of time. As the aforesaid aspect has not been dealt with and examined by the learned Single Judge, we feel that the mater should be remitted back to the learned Single Judge for consideration.