At, In the High Court of Bombay at Goa
By, THE HONOURABLE MR. JUSTICE R.M. SAVANT
For the Petitioner: Shivan Desai, Advocate. For the Respondents: A.D. Bhobe, Advocate.
1. Rule. With the consent of the learned Counsel for the parties made returnable forthwith and heard.
2. The writ jurisdiction of this Court under Article 227 of the Constitution of India is invoked by the petitioner i.e. the original defendant no.4 against the order dated 12/02/2008 and the order dated 10/05/2010 passed by the learned IInd Additional Civil Senior Division, Margao in Special Civil Suit No.118/2007/II(O) now renumbered as Regular Civil Suit No.31/2010(N).
3. In so far as the first order dated 12/02/2008 is concerned, by the said order the application filed by the defendant no.4 for extension of time to file the written statement came to be rejected and by the second order dated 10/05/2010, the application filed by the defendant no.4 for placing the written statement on record and the same to be accepted by the Trial Court came to be rejected. It is not necessary to go into unnecessary details, suffice it to say that there is a delay of about 40 days on the part of the defendant no.4 in filing its written statement. It appears that in so far as first application dated 12/02/2008 was concerned the plaintiffs had in fact endorsed on the said application that they have no objection to the extension of time being granted. Having regard to the fact that it is trite that provisions of Order 8 Rule 1 are directory and not mandatory and since the delay in filing the written statement is only 40 days, both the applications i.e. the application dated 12/02/2008 and the application dated 14/03/2008 are required to be allowed and accordingly allowed and resultantly the impugned orders dated 12/02/2008 and 10/05/2010 would stand quashed and set aside. The defendant no.4 would be entitled to file its written statement which was sought to be presented with the application dated 14/03/2008. The Trial Court to take on file the said written statement.
4. In the facts and circumstances of the case, it would be just and proper that the defendant no.4 is directed to pay costs of Rs.15,000/- to be paid to the plaintiffs on or before the next date of hearing before the Trial Court. The payment of Costs is a condition precedent and the benefit of this order would enure to the petitioner if the said costs are paid to the plaintiffs.
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If the costs are not paid as mandated by the instant order the benefit of this order will not enure to the petitioner and consequently the petition would be deemed to be dismissed. 5. The parties to act on a authenticated copy of this order.