KULDEEP UMRAOSINGH OSTWAL Vs. CHANDRAKANT N PATEL

JUDGEMENT

(1.) Submissions of the learned Counsel appearing for the Petitioners were heard yesterday. By this Writ Petition under Article 227 of the Constitution of India, the Petitioners who are the Original Plaintiffs have taken an exception to an order dated 30th January, 2010 passed by the trial Court on a pursis filed by the Advocate for the 1st to 7th Respondents. By the said pursis, the said Respondents ( Defendants ) adopted their reply at Exhibit 12 as their Written Statement. The said reply at Exhibit 12 was filed to an application for temporary injunction. The Trial Court by the impugned order accepted the pursis and directed that the reply was already on record which shall be treated as the Written Statement. The learned Counsel appearing for the Petitioners submitted that there was no Written Statement filed by the concerned Defendants within the outer limit provided under Rule 1 of Order VIII of the Code of Civil Procedure, 1908 (hereinafter referred to "as the said Code") as amended with effect from 1st July, 2002. He submitted that though the rule has been held to be directory, the Apex Court has held that the time for filing Written Statement cannot be extended for asking and only in rare and exceptional cases that the Court can extend the time for cogent reasons to be recorded. He submitted that in the pursis filed by the 1st to 7th Respondents on 29th January, 2010, no reasons have been assigned firstly for not filing the Written Statement within the period provided by the statute and secondly for not filing the pursis earlier. He has placed reliance on a decision of the Apex Court in the case of Mohammed Yusuf v. Fali Mohammad and Ors., 2009 3 SCC 513. He also placed reliance on another decision of the Apex Court in the case of Kailash v. Nanhku and Ors., 2005 4 SCC 480. Lastly he placed reliance on a decision of the larger bench of the Apex Court in the case of R.N. Jadi & Brothers and Ors. v. Subhashchandra, 2007 6 SCC 420. He submitted that the period provided in Rule 1 of Order VIII of the said Code cannot be extended for asking and in the present case, there are no reasons assigned for the delay in filing the Written Statement and even the delay in filing the pursis. He invited my attention to the relevant observations of the Apex Court in aforesaid decisions.

(2.) I have given a careful consideration to the submissions. It is not in dispute that a reply to the application for temporary injunction which is now adopted as the Written Statement was filed well within 90 days from the date on which the summons of the suit was served to the Defendants. The said reply is in the form of pleadings which is duly verified in accordance with Rule 15 of Order VI of the said Code. The effect of accepting the pursis filed by the concerned Defendants is that the reply which is already on record since 2007 will be treated as the Written Statement of the concerned Defendants. The practice which is consistently followed in the Civil Courts in various Districts in the State of Maharashtra is that normally a very exhaustive reply is filed to an application for temporary injunction. Such reply invariably deals with the averments made in the Plaint inasmuch as generally an application for temporary injunction which is filed with the Plaint is either a replica of the Plaint or in many cases certain paragraphs of the Plaint are adopted in such applications. Due to the very nature of the application for temporary injunction, such reply is filed immediately after service either to avoid an adinterim order being passed or to get an adinterim order vacated. Normally, in Districts, such reply is in the form of a pleading which is duly verified in accordance with Rule 15 of Order VI of the said Code. There is a routine practice followed in Civil Courts in Districts to adopt such a reply as the written statement. In the said Civil Courts, suit summons as well as the notice of application for temporary injunction filed along with the suit is served together. Therefore, the practice of allowing a defendant to adopt the reply to application for temporary injunction as a written statement has been consistently followed by Mofussil Courts in the State. It is a healthy practice provided the pursis adopting the reply as a written statement is not filed belatedly. However, the practice followed in City Civil Court in Mumbai is totally different. In case of suits filed in the said Court, suit summons is not served with the Notice of Motion for injunction and the reply filed to the Notice of Motion is in the form of an affidavit which is not verified in accordance with Rule 15 of Order VI of the said Code.

(3.) At this stage, it will be necessary to consider the decision of this Court dated 3rd May, 2007 passed in Writ Petition No. 8286 of 2006 in the case of Narayan P. Jadhav and Anr. v. Shakuntala Ghansham Shah and Ors. In Paragraph 6 of the said decision, this Court has observed thus: