ZOLBA versus KESHAO AND ORS.

Citation: [2008] 5 S.C.R. 963 · Decided: 01-04-2008 · Supreme Court of India · Bench: TARUN CHATTERJEE, H.S. BEDI · Disposal: Case Allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2008] 5 S.C.R. 963 
"( 
ZOLBA 
A 
\I. 
KESHAO AND ORS. 
(Civil Appeal No. 2360 of 2008) 
~ 
APRIL 1, 2008 
B 
. (TARUN CHATTERJEE AND HARJIT SINGH BEDI, JJ.) 
Code of Civil Procedure, 1908: 
Or. 8, r. 1 - Filing of written statement after expiry of c 
statutory period - HELD: It would be open to the court to permit 
defendant to file written statement if exceptional circumstances 
have been made out - Unless compelled by express and 
specific language of statute, provisions of Order 8 Rule 1 or 
any procedural enactment should not be construed in a manner 
-; 
which would leave the court helpless to meet extraordinary D 
)< 
situations in the ends of justice - In the instant case, facts 
stated would constitute sufficient cause for condoning delay 
in filing written statement and it has to be taken that non-
availability of records in the trial court had prevented the 
defendant from filing written statement within the period of E 
limitation which was an exceptional circumstance - High Court 
as well as trial court erred in rejecting application for condoning 
' 
delay in filing written statement - Application is allowed and 
~ 
the written statement accepted - Trial court to proceed with 
hearing of the suit and dispose of the same expeditiously. 
F 
, 
Salem Advocate Bar Association, Tamil Nadu vs. Union 
of India AIR 2005 SC 3353 - relied on. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 
2360 of 2008. 
G 
From the Judgment and final Order dated 11/10/2006 of 
the High Court of Judicature at Bombay, Nagpur Bench, Nagpur 
• in W.P. No. 4019/2006 
963 
H 
964 
SUPREME COURT REPORTS 
[2008] 5 S.C.R. 
A 
Shivaji M. Jadhav for the Appellant. 
The Order of the Court was delivered by 
1. Leave granted. 
2. In spite of due service, no one has entered appearance 
B on behalf of the respondents. Even at the time of hearing of this 
appeal, the respondents. had failed to appear to contest the 
appeal. 
3. This appeal is directed against the judgment and order 
c dated 11th of October, 2006 passed by a learned Judge of the 
High Court of Judicature at Bombay, Nagpur Bench in Writ 
Petition No.4019 of 2006 by which the learned Judge had 
dismissed the writ petition filed by the appellant for condoning 
the delay of 35 days in filing the written statement in a suit for 
0 
partition and separate possession of agricultural land filed by 
the respondents. 
4. We have heard the learned counsel appearing for the 
appellant and also examined the impugned order of the High 
Court as well as of the trial court and also the application for 
E acceptance of the written statement, which was filed out of time. 
5. Having heard the learned counsel for the appellant and 
after considering the materials on record, we are of the view 
that in the facts and circumstances of the present case, the High 
Court ought to have condoned the delay in filing the written 
F statement under Order 8 Rule 1 of the Code of Civil Procedure 
(in short "the CPC"), even if some delay was caused in filing the 
~ · 
same. The appellant was the defendant in the suit for partition 
and separate possession of agricultural land falling under Gat 
No.243 admeasuring 0.50 H.R. situated at Village Mouza- Kojai 
G and house No.139 situated at Village Gaijapur, Maharashtra 
(herein after referred to as the 'suit properties'). The plaintiffs/ 
respondent Nos. 1 to 5 have also sought for a declaration to the 
effect that a Will dated 5th of June, 2003 executed in favour of 
• 
the respondent No.6 (petitioner No. 2 in the High Court) was 
H illegal, null and void and also for permanent injunction restraining 
ZOLBA v. KESHAO AND ORS. 
965 
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the appellant from making any construction over the open land A 
falling in house No.139.A perusal of the record would show that 
the respondents in the pending suit moved an application for 
grant of temporary injunction against the appellant. By an order 
dated 29th of April, 2005, the Civil Judge, Junior Division, 
Nagbhid granted temporary injunction in favour of the B 
I 
respondents. Feeling aggrieved, the appellant has preferred a 
misc. civil appeal before the District Judge, Chandrapur and 
the same is now pending decision. The appellant under bonafide 
i 
belief and on instruction of his counsel in the trial court could not 
file the written statement as he was advised by his counsel that c 
the written statement could be filed after the decision of the 
appeal pending before the district court. However, when advised 
b

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