Bombay High Court
AMNRE DEEP SING JUDGE THR POA DEVENDRA SINGHversusBONIFACIO FERNANDES AND ANR
- Disposal
- Disposed of
Holding
The High Court set aside the trial court’s order refusing condonation and allowed the petition, subject to a cost deposit.
Summary
The petitioner, a non‑resident Indian, sought condonation of a 5‑year‑5‑month delay in filing his written statement in Civil Suit No. 367/2015. The trial court refused, holding the petitioner negligent. The petitioner argued that his advocate’s death and negligence caused the delay, presenting affidavits and WhatsApp chats as evidence. The High Court examined the provisions of Order VIII Rule 1 and Section 148 of the CPC, noting they are directory and require a clear justification for extension. Finding the petitioner’s explanation credible and the delay accidental, the Court set aside the trial court’s order and allowed the writ petition, subject to a cost deposit of Rs. 25,000. The petition was thereafter disposed.
Issues considered
- Whether the delay of over five years in filing a written statement can be condoned under Order VIII Rule 1 and Section 148 of the CPC.
- Whether the advocate’s negligence and death constitute sufficient cause for condonation of delay.
- Whether the High Court can set aside the trial court’s order under Article 227 of the Constitution.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order VIII Rule 1, Section 148
- Constitution of India — s. Article 227
Subjects
- condonation of delay
- written statement
- Civil Procedure Code
- advocate negligence
- non‑resident Indian
- Article 227
- certiorari
- cost deposit
Judgment
2026:BHC-GOA:1736 Wp-365-2023
Suzana
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.365 OF 2023
Amnre Deep Sing Judge
Thr POA Devendra Singh … Petitioner
Versus
Bonifacio Fernandes And Anr. .. Respondents.
Mr. Anoop Gaonkar, Advocate for Petitioner.
Mr. John A. Lobo, Advocate for Respondents.
CORAM : S. G. CHAPALGAONKAR, J.
Reserved on: 24th August 2026
Pronounced on: 28th August 2026.
ORDER:
1. The Petitioner/original Defendant No.1 impugns Order dated
07.02.2023 passed by Learned Civil Judge Junior Division ‘F’ Court at
Margao, Exhibit D-33 thereby refusing to condone delay of 5 years 5
months caused in failing the written statement in Regular Civil Suit
No.367/2015/E/F.
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2. The Respondent No.1/original Plaintiff instituted Suit for perpetual
injunction and consequential reliefs against the Petitioner and
Respondent No.2. On 10.12.2015, the Petitioner appeared in suit through
his Advocate. From 18.08.2016, Petitioner’s Advocate made request for
condoning delay in filing written statement. However, ultimately, the
written statement was not filed. In the year 2022, the Petitioner’s
Advocate expired. On 02.08.2022, the Petitioner filed application
seeking condonation of delay and permission for filing written statement
in Exhibit D-33. The trial Court declined to entertain the application
observing that Petitioner, was not pursuing the matter, at his personal
level shows that he was negligent and not diligent and no sufficient cause
is made out to condone inordinate delay.
3. Mr. Anoop Gaonkar, Learned Advocate appearing for the Petitioner
submits that Petitioner is a Non-Residential Indian. He had engaged
Advocate Mr. J. B. Godinho to defend the Suit who assured to take
necessary steps in the matter. The Petitioner has signed all papers as per
his instructions and remained under bonafide belief that the suit has been
contested on his behalf. Mr. Gaonkar would further point out that
detailed reply was filed to temporary injunction application,
incorporating all probable defences on behalf of the Petitioner. However,
the Petitioner noticed non-filing of written statement, only when he
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obtained copies of papers from Court record after demise of Advocate.
The Petitioner was neither negligent nor he slept over right but suffered
due to negligence of the Advocate his written statement could not be filed
on record. In support of his contention, he relies on observations of The
High Court of Judicature Bombay at Aurangabad in Writ Petition
No.12117 of 2024 decided on 7th March 2026.
4. Per contra, Mr. John A. Lobo, Learned Advocate appearing for
Plaintiff/Respondent No.1 vehemently opposes the application
contending that suit is pending since 2015. Respondent No.2 was the
Power of Attorney holder on behalf of the Petitioner. The Petitioner’s
Advocate consistently made applications for extension of time for filing
written statement. In this backdrop, negligence on the part of Petitioner
is apparent on face of record. The Trial Court has rightly refused to
condone the delay by recording adequate reasons for such decision.
Hence, no interference is required under Article 227 of Constitution of
India.
5. Having considered submissions advanced by Learned Advocate
appearing for respective parties, this Court finds that provisions of Order
VIII Rule 1 of Code of Civil Procedure, 1908 are directory and not
mandatory. It is true that time beyond 90 days of service of summons to
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file written statement must be granted only on clear satisfaction of the
justification for granting such extension. The Court has to be conscious
of the fact that even power of the Court for extension inhering in Section
148 of the Code has also been restricted by the legislature. It would be
necessary to make out an exceptional case to condone the delay and
permit filing of delayed written statement. At the same time, the Court
has to bear in mind that procedure is the handmaid of justice. The Court
must be anxious to do justice and to prevent victories by way of technical
knockouts.
6. Turning back to the facts of the present case, admittedly, Petitioner
is a resident of United Kingdom. He was contesting the litigation through
his Power of Attorney holder. Advocate Mr. J. P. Godinho was engaged
on his behalf to defend. He had filed his Vakalatnama along with a copy
of Attorney. Roznama indicate that detailed reply to the application for
temporary injunction was filed incorporating plausible defences on
behalf of Defendants. However, time was sought under the pretext that
the matter can be settled between the parties. After initial attempt of
settlement, request was made to grant time to file application to condone
the delay in filing the written statement. Thereafter, Advocate Mr. J. P.
Godinho represented to Court that he is willing to send withdrawal notice
to the parties. Ultimately, in the year 2022, Advocate Mr. J. P. Godinho
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expired. Thereafter, Petitioner collected papers and found that written
statement was not filed on his behalf.
7. The suit is at the stage of evidence, however, trial is yet to
commence. The failure on the part of the Petitioner to file written
statements can be said to be accidental as a detailed reply was filed to
temporary injunction application. Evidently, Petitioner had provided
adequate instructions to his Advocate for filing written statement. A
close scrutiny of Roznama depict that Petitioner’s Advocate was mostly
present before Court and he made applications for extension of time to
file written statement. The Petitioner has filed an additional affidavit
along with copies of WhatsApp chat with Advocate that shows that
Petitioner was always in contact with his Advocate but he was never
advised or informed as to filing of the written statement. The possibility
that there was communication gap between Petitioner and his Advocate
on the point of filing written statement cannot be ruled out. In this
backdrop, explanation offered on behalf of the Petitioner for non-filing of
written statement can be accepted. Inconvenience caused to the
Respondent/Plaintiff can be compensated by awarding appropriate costs.
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8. In this backdrop, this Court finds that impugned Order cannot be
sustained in law particularly because it does not consider circumstances
and reasons for delay made out by Petitioner.
9. In result, Writ Petition is allowed in terms of prayer clause (a)
subject to condition that the Petitioner deposits the cost of Rs.25,000/-
with Trial Court within a period of four weeks from today. Upon such
deposit, the costs amount shall be paid to Respondent Plaintiff.
Prayer clause (a) reads thus:
“(a) For a writ of certiorari, order or direction in the nature of
certiorari, calling for the records and proceedings of Regular
Civil Suit No.367/2015/E on the file of Civil Judge Junior
Division ‘F’ Court at Margao, Goa and upon perusing the
propriety and legality of the Impugned Order dated
07/02/2023 passed by the learned Judge on the application
dated 02/08/2022 filed by the Petitioner seeking condonation
of delay in filing the written statement, at Exh. D-33, be pleased
to quash and set aside the Impugned Order dated 07/02/2023
passed by the learned Judge and allowed the application dated
02/08/2022 at Exh. D-33.”
10. Writ Petition is disposed of.
S. G. CHAPALGAONKAR, J.
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Signed by: MARIA SUZANA REBELLO
28 August 2026
Designation: Personal Assistant
Date: 28/08/2026 14:06:09
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