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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

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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