Bombay High Court
ZORAR AHMED FAIYAZ AHMEDversusSHRI SHAIKH MOHAMED SHABBIR AND ORS.
- Decided
- Disposal
- Allowed
Holding
The court may, in appropriate cases, condone delay and treat a belated reply to a motion as the written statement, but may impose costs on the defaulting party.
Summary
The petitioner challenged the City Civil Court's order dismissing a notice of motion that sought to treat a belated reply to a temporary injunction motion as the written statement. The reply was filed on 3 March 2014, well after the deadline prescribed by Order VIII Rule 1 of the Code of Civil Procedure, 1908. The Court examined the Supreme Court’s decision in Kailash v. Nanhku, which holds that the provisions of Order VIII Rule 1 are directory and the court may condone delay in non‑commercial suits. Considering that the suit was still at the issue‑framing stage after eleven years, the Court set aside the impugned order, treated the reply as the written statement, and imposed costs of Rs. 25,000 on the petitioner for the delay. The writ petition was allowed and disposed of with costs.
Issues considered
- Whether a reply filed after the time limit under Order VIII Rule 1 can be treated as a written statement.
- Whether the court has the power to condone such delay in a non‑commercial civil suit.
- Whether costs may be awarded against the party responsible for the delay.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order VIII Rule 1
Subjects
- temporary injunction
- written statement
- condonation of delay
- Order VIII Rule 1
- civil procedure
- writ petition
- cost award
Judgment
2026:BHC-AS:34746
Renuka 7-WP-9292-2016.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9292 OF 2016
Zorar Ahmed Faiyaz Ahmed ...Petitioner
V/s.
Shri Shaikh Mohamed Shabbir and Ors. ...Respondents
________________
Mr. Jamshed Ansari with Mr. Rohit Upadhyay with Mr. Riyaz Khan for
Petitioner.
Mr. Santosh Mali for Respondent No.2 to 5/BMC.
Mr. Mohamed Shabbir Shaikh for Respondent in person.
________________
CORAM: SANDEEP V. MARNE, J.
DATED: 21 AUGUST 2026.
P.C.:
1) The Petition challenges order dated 18 November 2015
passed by the learned Judge City civil Court dismissing Notice of Motion
No. 3645 of 2013. The Motion was filed for treating reply dated 3 March
2014 filed to oppose Notice of Motion for temporary injunction as the
written statement of Defendant No. 6.
2) I have heard Mr. Ansari, the learned counsel appearing for
the Petitioner, Mr. Mali, the learned counsel appearing for the
Respondent Nos. 2 to 5 and Mr. Shaikh, the Respondent appearing in
person and have considered the submissions canvassed by them.
Page No.1 of 3
21 August 2026
Renuka 7-WP-9292-2016.docx
3) The suit summons was served on Defendant No. 6 on 20
April 2012. It appears that Plaintiff was pressing prayers for temporary
injunction in a Notice of Motion filed for that purpose. Defendant No. 6
therefore filed reply opposing Notice of Motion for temporary injunction
instead of filing a written statement.
4) It is the case of Defendant No. 6 that in the reply so filed, the
entire case of the Plaintiff in the plaint has already been dealt with.
Accordingly, a prayer was made before the Trial Court to treat the reply
to the motion as the written statement. Ordinarily, there would have
been no qualms in acceptance of such prayer. The only difficulty,
however, is that even reply opposing Motion for temporary injunction
was not filed within time permitted under Order VIII Rule 1 of the Code
of Civil Procedure, 1908 (Code). The suit summons was served on 20
April 2012, whereas the reply opposing motion for temporary injunction
was filed on 3 March 2014.
5) The Apex Court has held in Kailash V/s Nanhku and Ors.1
in provisions of Order VIII Rule 1 of the Code are directory in nature and
not mandatory. In an appropriate case, the Court is invested with power
to condone the delay in filing of written statement in a Suit which is not
registered as a Commercial Suit. In the present case, there appears to be
some delay in filing reply to the Motion. However, it appears that the suit
is still pending at the stage of framing of the issues. Though the
impugned order was passed on 18 November 2015, not much has
progressed in terms of trial of the Suit during last 11 long years. In my
1 2005 (4) SCC 480
Page No.2 of 3
21 August 2026
Renuka 7-WP-9292-2016.docx
view, therefore, prayer of the Petitioner/Defendant No. 6 for treatment
of reply opposing Notice of Motion can be treated as written statement
filed in the Suit. However, since the Petitioner is found negligent in not
filing written statement within time, costs are required to be imposed on
the Petitioner.
6) I accordingly proceed to pass the following order:-
(i) Order dated 18 November 2015 passed by the City
Civil Court is set aside.
(ii) Reply filed by the Petitioner opposing Notice of
Motion for temporary injunction shall be treated as
written statement of Defendant No. 6.
(iii) Petitioner/Defendant No. 6 shall pay to the Plaintiff
cost of Rs. 25,000/- within a period of four weeks.
(iv) Payment of cost shall be condition precedent for
treating the reply as written statement.
7) With the above directions, Writ Petition is allowed and
disposed of with costs as directed above.
[SANDEEP V. MARNE, J.]
Signed by: Renuka S Thakur
Page No.3 of 3
Designation: PA To Honourable Judge 21 August 2026
Date: 24/08/2026 15:27:24
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