Limitation Period To File Written Statements Starts From Date Of Service Of Writ Of Summons: Bombay High Court

The Bombay High Court held that the limitation will start from the day when the writ of summons along with the copy of the plaint/suit is served on the Defendant.

The Bench of Justice Jitendra Jain observed, “The object of Order VIII Rule 1 of the CPC, which provides for written statement is to enable the Defendant to present his defence to the case made out by the Plaintiffs in the plaint. Therefore, unless the Defendant is served a copy of the suit/plaint, it would not be possible for the Defendant to file his defence. Therefore, on first principle itself, the limitation provided under Order VIII Rule 1 would start from the date of service of writ of summons which in the present case i.e. 08.03.2023 because on that date alongwith writ of summons, admittedly and undisputedly the Plaintiffs served copy of the plaint on Defendant No.1.”

Advocate Rohaan Cama represented the Applicant, while Advocate Smith Colaco represented the Respondents.

Case Brief

An Application was filed seeking condonation of 75 days delay in filing written statements in a non-commercial suit. It was the contention of the Applicant that the delay was on account of the office of the Advocate who received the writ of summons, but the Advocate’s office inadvertently did not inform the Advocate about the said writ of summons.

While the Respondent contended that the writ of summons was served on the Applicant on March 08, 2023, since the vakalatnama was filed on June 11, 2021, the starting date for limitation would be June 11, 2021, thus, there was delay of more than 700 days. The Applicant also referred to the Bombay High Court (Original Side Rules), 1980.

Court’s Observation

The question before the High Court was the starting point for calculating the limitation period to file written statements under Order VIII Rule 1 of the Civil Procedure Code, 1908 in case of non-commercial suit.

The High Court underscored that there was no dispute between the parties that in case of conflict between the Civil Procedure Code, 1908 and the Bombay High Court (Original Side Rules), 1980, it is the Original Side Rules which would prevail. Furthermore, there was also no dispute between the parties that in so far as non-commercial suits were concerned, the Court has the power to condone the delay. There is no bar beyond which the Court cannot condone the delay.

Crucially, the object of Order VIII Rule 1 of the CPC was highlighted by the High Court, which provides for written statement was to enable the Defendant to present his defence to the case made out by the Plaintiffs in the plaint.

“Therefore, unless the Defendant is served copy of the suit/plaint, it would not be possible for the Defendant to file his defence. Therefore, on first principle itself, the limitation provided under Order VIII Rule 1 would start from the date of service of writ of summons which in the present case i.e. 08.03.2023 because on that date alongwith writ of summons, admittedly and undisputedly the Plaintiffs served copy of the plaint on Defendant No.1”, the Court said.

The Court held that the limitation would start from the day when the writ of summons along with the copy of the plaint/suit was served on the Defendant, which in the instant case is on March 08, 2023 and, therefore, the Applicant was justified in calculating delay from the said date.

With the regard question whether the reason given for the delay constitutes “sufficient cause” for condonation in filing written statement, the High Court held that the reason for delay was on account of the office of the Advocate who received the writ of summons, but the Advocate’s office inadvertently did not inform the Advocate about the said writ of summons would constitute “sufficient cause” for the delay since the Applicant was the society which was run by honorary members.

“It cannot be ruled out that there was some lapses on the part of the office of the Advocate. Merely because there is a lapse on the part of the office of the advocate same should not prevent Defendant No.1 from filing the written statement belatedly. The cause shown is sufficient for this Court to condone the delay. Litigants cannot be made to suffer on account of lapse of the Advocate moreso when the delay is only 75 days”, the Court observed.

The High Court also noted that office bearers of Applicant society contacted the Advocate, which shows that they were vigilant and it was only by this that the said Advocate realized that there has been a lapse on the part of his office.

Accordingly, the High Court condoned the delay.

Cause Title: Gautam Dham Co-operative Housing Society Limited V. Funds and Properties of Parsi Panchayat (Neutral Citation: 2025:BHC-OS:15743)

Appearance:

Petitioner: Advocates Rohaan Cama, Kyrus Modi, Pankaj Pandey and Smit Nagda

Respondent: Smith Colaco

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