Bombay High Court: While considering an interim application filed by a cooperative housing society (applicant), for the condonation of delay of 75 days in filing written statement, a Single Judge Bench of Jitendra Jain, J., held that the limitation for fling the written statement was rightly calculated by the applicant from the date of the service of summons as per the provisions of Civil Procedure Code, 1908 (‘CPC’). Additionally, the Court opined that the applicants, upon finding out the lapse by the advocate’s office in filing the written statement, were vigilant enough to contact the Advocate themselves. Thereafter, the written statement was immediately finalised and filed in the Court.
Thus, the Court condoned the delay stating that litigant cannot be made to suffer when the lapse was made on the part of the Advocate, especially when the delay was merely of 75 days.
Background
The applicant (original defendant) was issued writ summons with reference to a non-commercial suit filed against it, on 8-3-2023. As per Order 5 Rule 1 of the CPC, the defendant had to file the written statement within 30 days, which had expired on 7-4-2023. The applicant filed the written statement with a delay of 75 days from 8-4-2023. It was contended that the delay was due to the lapse of Advocate’s office who had received the writ of summons but did not inform the Advocate about the same. On inquiry by the office bearers of applicant, the Advocate inquired with his staff and became aware that the writ of summons had been served on 8-3-2023. Thereafter, the Advocate took immediate steps in drafting the written statement, getting it approved by the office bearers of defendant and held conference for finalization of the same. Thus, the applicant had also filed an application for condonation of delay in filing of the written statement, seeking condonation of 75 days delay in the present application.
Analysis, Law and Decision
Issue 1: What is the starting point for calculating limitation period to file written statement under Order 8 Rule 1 of CPC in case of non-commercial suit?
The Court opined that the contention of the original plaintiffs that the applicant should have had filed an application before the Court to obtain the copy of the plaint was in contrast with the provisions of CPC and was totally unjustified and such contention was also not backed by any law.
The Court pointed out that the objective of Order 8 Rule 1 of CPC enabled the defendant to present his defence to the case made out against him by the plaintiff in its plaint. Therefore, unless any defendant is served the copy of the plaint, it would not be possible for him to defend himself. The Court opined that the conjoint reading of Rules 84,87,88 and Order 8 Rule 1 of the CPC clarified that the limitation period would start from the day when the writ of summons along with the copy of the plaint was served on the applicant, which in the instant case was on 8-3-2023 and, therefore, applicant was justified in calculating delay from the said date.
Therefore, the respondent was wrong in contending that the period of limitation would start from the date on which the vakalatnama was filed i.e. on 11-6-2021, on behalf of applicant.
Issue 2: Whether the reason given by the applicant for the delay, constituted sufficient cause for condonation in filing written statement?
The Court noted that the applicant society was run by honorary members, who were vigilant enough to contact the Advocate for filing of the written statement. It found out that lapse was made on the part of the office of the Advocate, who did not inform the Advocate regarding the of writ of summons served upon them. Thereafter, the Advocate took immediate steps for finalising the written statement which was then filed with a delay of 75 days.
The Court opined that merely because there was lapse on the part of the office of the advocate same should not prevent applicant from filing the written statement belatedly. The Court held that the litigant cannot be made to suffer on account of lapse of the Advocate especially when the delay is only of 75 days. Thus, the Court, referring to the case of Nitin Mahadeo Jawale v. Bhaskar Mahadeo Mutke, 2024 SCC OnLine SC 3468, held that such lapse on the part of the Advocate, constituted sufficient ground for the condonation of delay.
Accordingly, the Court held that the applicant had rightly calculated the delay from the date of service of summons and it was not the duty of the applicant to file application to obtain the copy of the plaint. Additionally, The Court opined that the applicant had shown enough vigilance and the lapse of the part of Advocate was sufficient cause to condone the delay, especially when the delay was merely for 75 days. Therefore, the Court allowed the interim application for the condonation of delay, filed by the applicant.
[Gautam Dham Co-operative Housing Society Ltd. v. Funds and Properties of Parsi Panchayat, 2025 SCC OnLine Bom 3326, decided on: 20-9-2025]
Advocates who appeared in this case:
Advocate for the Plaintiffs- Smith Colaco i/by Mulla & Mulla and Cragie Blunt & Caroe, Advocates
Advocate for the Defendants- Rohaan Cama, Kyrus Modi, Pankaj Pandey, Smit Nagda, Advocates
Courts should excercise ” laws are laid for fair justice not to prejudice”
In Commercial Suits, filing of Written Statement should not fixed with time limit. If so, should not give an opportunity to Plaintiff for exemption from mediation. If so, both are allowed by Commercial Courts, then Condonation of delay to be allowed in filing WS & should not be forfeited for the reasons of expiry of Time to enable defence to secure fair justice.
Further when defendant had filled a Rejection petition prior time limit to file WS ( ( which got forfeited) as per procedural irregularities, No forfeiture of WS should be awarded without hearing Rejection Petition. .
Most of Judges in commercial courts, are observing only rules & orders prescribed as in Laws not procedural irregularities practices, as a result the defendant loses their rights for fair defence & prejudice of justice. As there remains strict laws , timelines in commercial courts, most of Defendants are losing their defence & justice in commercial courts for three reasons :
1. Timeline of filing WS in 120 days
2. Exemption from Mediation before trial ( is mandatory as per supreme court, then exemption is provided, there will not be any reason for defeat of decree merely on apprehension of defeat of Decree, exemption should not be allowed while there more remedies left in law )
3. Without hearing or orders against Rejection Petition filled before WS timeline, the forfeiture of WS should be allowed in future, before trial starts.
So,
Experts in Law, & Judges of Commercial CourtS should observe to follow the above, else defendants will lose their rights at initial stage itself. What’s the use of filing CRP / Writ etc. .
It’s wastage of time money energy for both plaintiff & defendant on failure of proceedings by Judges concerned.