ANAND BALKISHAN MANDHANIA Vs. ANIL BALKISHAN MANDHANIA

JUDGEMENT

(1.) Heard Ms. Agneya B. Mankad, learned advocate for Mr. B.Y. Mankad, learned advocate for the petitioners as also Mr. Yatin Soni, learned advocate for the respondent Nos. 1, 2 and 3 and rest are shown to be served in the cause-list.

(2.) This petition under Article 227 of the Constitution of India, is filed challenging an order passed below Exhibit-10 in Special Civil Suit No. 107 of 2019, passed by Principal Senior Civil Judge, Mirzapur, Ahmedabad (Rural) preferred by the present petitioners - plaintiffs requesting to struck out the written statement filed by defendant No. 1 being barred by limitation and order to take it out from consideration under Order VIII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"), which came to be not only rejected but a cost is imposed upon the petitioners - plaintiffs to deposit with the District Legal Services Authority.

(3.) Ms. Agneya B. Mankad, learned advocate for the petitioners, submitted that the order impugned, which is at page 14(A), is incorrect, while calculating the days beyond which the written statement came to be filed. She has submitted that the respondents - defendants were served with the summons on 6/3/2019, whereas the learned Judge has considered their date of appearance before the Court as a date of service of summons, and therefore, there is incorrect calculation recorded in the order to be only 32 days and within 90 days, as permissible under the law. However, considering the same from the date of service of summons, it is beyond a period of 90 days, as provided for under "the Code". She has further submitted that even if Court is required to extend the time for submission of written statement, it should have been made on an application preferred by the defendants praying for condonation of delay caused in filing written statement within the time prescribed. In absence thereof, according to her submission, no order, either permitting or accepting the written statement filed by the defendants be recorded by the Court. She has further submitted that since Court arrived at a conclusion that the written statement is filed within the permissible limit based on incorrect calculation, when the petitioners - plaintiffs asserted to determine the same, not only the Court rejected the application but imposed cost upon the petitioners - plaintiffs, which could not have been done. Therefore, she has submitted that the present petition be allowed. The written statement submitted by the defendants be struck out from the record and order imposing cost upon the petitioners - plaintiffs be set aside.