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Himachal Pradesh High Court · body

2002 DIGILAW 66 (HP)

TEJWANT SINGH v. SHEELA DEVI

2002-03-21

K.C.SOOD

body2002
JUDGMENT Kuldip Chand Sood, J.—This petition is directed against the orders passed by learned Motor Accident Claims Tribunal, Shimla, dated 17.10.2001. 2. It appears in a Claim Petition, filed by Sheela Devi and others (claimants for short), present petitioner Tejwant Singh was respondent No.l (hereinafter referred to as respondent No. 1). When the matter came up before the learned Tribunal on 21.4.2001, the learned Tribunal directed issuance of notices to respondents 1 and 2 for 28.6.2001. 3. On 28.6.2001, respondent No. 1 was served but was not represented or present. He was proceeded against ex parte on that date. Fresh notice was directed to be issued to respondent No.2. In the meanwhile, it appears respondent No. 1 Tejwant Singh having come to know that he had been proceeded against ex parte, moved an application on 26.7.2001 for setting aside the ex parte proceedings under Order 9 Rule 7 of the Code of Civil Procedure. When the matter came up before the learned Tribunal on 24.8.2001, the Presiding Officer was absent and the matter could not be taken up on that date. The matter was taken up on 31.8.2001. On that day reply to the application for setting aside the ex parte proceedings was directed to be filed on 17.10.2001. When the matter came up again before the learned Tribunal on 17.10.2001, it was found that respondent No. 2 was not served. His service was directed to be awaited. So far respondent No. 1 was concerned, his application for setting aside the ex parte proceedings was taken up and the said ex parte proceedings were set aside. However, simultaneously the learned Tribunal chose to struck off the defence of respondent No. 1 on the grounds that respondent No. 1 was served long time back and "he had ample time, of more than four months, to file the counter." The relevant portion of the impugned order reads: "Amazingly, reply to the claim petition not filed nor it has been annexed to the said application, which was filed on 26.7.2001. Since service upon the first respondent was effected on 13.6.2001 and he had ample time of more than four months to file the counter, I think that it is a fit case where the defence of the first respondent should be struck off. Ordered accordingly." Sh. Since service upon the first respondent was effected on 13.6.2001 and he had ample time of more than four months to file the counter, I think that it is a fit case where the defence of the first respondent should be struck off. Ordered accordingly." Sh. G.C. Gupta, learned Senior Counsel for the respondent-claimant candidly and fairly states that it was not possible to support the impugned order. Having heard the learned Counsel for the parties, I am of the view that the impugned order of the learned Tribunal is illegal and unsustainable. In my view, he had no jurisdiction to pass such an order. Learned Tribunal travelled beyond his jurisdiction in striking off the defence of respondent No. 1. 4. Order 1 Rule 8 of the Code of Civil Procedure envisages filing of the written statement by the defendant(s) at or before the first hearing or within such time as the Court may permit. Sub-rule 1 of Order 8 of the Code reads: "Written statement.—(1) The defendant shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence." Rule 10 of Order 8 of the Code stipulates: When any party fails to file the written statement, when required to do so under Rule 9 or as contemplated under Rule 1 within the time permitted or fixed by the Court, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up. Rule 10 of Order 8 is reproduced for the convenience: "Procedure when party fails to present written statement called for by Court.— Where any party from whom a written statement (is required under Rule 1 or Rule 9) fails to present the same within the time (permitted or fixed by the Court, as the case may be, the Court shall) pronounce judgment against him, or make such order in relation to the suit as it thinks fit (and on the pronouncement of such judgment, a decree shall be drawn up)." Rule 9 of Order 8 of the Code provides that no pleading subsequent to the written statement of the defendant other than by way of defence to a set-off or counter claim shall be presented except with the leave of the Court. However, the Court has the power to permit a written statement or additional written statement to be filed by any of the parties within the time fixed by the Court. 5. A careful reading of the provision, noticed above, indicate that the defendant is required to file written statement at or before the first hearing in the court or within such time as may be extended by the Court under Rule 1 and in case the written statement is not presented at the first date of hearing or within the extended period, then the Court can proceed to pronounce the judgment in that case. 6. The language of Rule 1 of Order 8 shows that the defendant has option to file the written statement either at or before "the first hearing". Such a written statement can also be filed at a later stage with the permission of the Court. The Court indeed cannot compel the defendant to file the written statement before the first hearing. Where for some reason, as in the present case, it is not possible for the respondent to file written statement before or at the first hearing he is entitled to obtain time to file such written statement. Defence cannot be struck off for the reason that; the respondent has not filed written statement. 7. Respondent No. 1, in the present case, could not have filed the written statement unless the ex parte proceedings against him were set aside. 8. When the matter came up before the learned Tribunal on 17.10.2001, it was found that the claimant had not filed reply to the application for setting aside of the ex parte proceedings. It is for that reason alone that ex parte proceedings were set aside. Apparent as it is respondent No. 1 Tejwant Singh could not imagine that the ex parte proceedings would be set aside on that date, as the case was fixed for filing reply to the application for setting aside of the ex parte proceedings and therefore was not ready with the reply. In these circumstances, the learned Tribunal gravely erred in forfeiting the right of respondent No.l Tejwant Singh to contest the claim petition. Such a practice, in my view cannot be approved and has to be deprecated. 9. In these circumstances, the learned Tribunal gravely erred in forfeiting the right of respondent No.l Tejwant Singh to contest the claim petition. Such a practice, in my view cannot be approved and has to be deprecated. 9. It is to be noticed that respondent No. 1 did not appear in answer to the summons served upon him and he was rightly proceeded against ex parte, as contemplated under order 9 Rule 6 of the Code of Civil Procedure. However, once the ex parte proceedings are set aside, the respondent is relegated to the position that he would have occupied if he had appeared and, therefore, he would be entitled to file written statement as contemplated under Order 8 Rule 1 of the Code of Civil Procedure. In other words, he was required to file written statement at the first hearing or within the such time as the Court may permit. The question then arises is what is "first hearing." 10. The meaning of the expression "first hearing" is no longer res-integra. The Apex Court as far back as 1955 in Sangram Singh v. Election Tribunal Koth and another, AIR 1955 SC 425, held that "the first hearing is either for the settlement of issues or for final hearing." In the present case, as noticed earlier, the other respondent (respondent No. 2) had not been served. The learned Tribunal by the impugned order itself directed that summons issued to respondent No.2 may be awaited and for that purpose the case was directed to be listed on 11.3.2002. In these set of circumstances, by no stretch it can be said that the date on which the ex parte proceedings were set aside against respondent Tejwant Singh was first hearing within the meaning of Rule 1 of Order 8 of the Code of Civil Procedure. 11. This apart, I had already observed in one of the cases that approach to the Court should not be pedantic and punitive and the Court should decide the case on merits rather than on technicalities. It is unfortunate that such an approach is still being pursued. 11. This apart, I had already observed in one of the cases that approach to the Court should not be pedantic and punitive and the Court should decide the case on merits rather than on technicalities. It is unfortunate that such an approach is still being pursued. In the present case, learned Tribunal instead of facilitating justice by affording an opportunity to respondent No. 1, to file his reply so that he was not condemned unheard, acted in a manner so as to suggest that the respondent must be punished for his omission to be ready with the reply on the date when the ex parte proceedings were set aside against him. The learned Tribunal failed to appreciate the facts and circumstances of the case. The case was adjourned by the learned Tribunal for 11.3.2002 for service of second respondent. Yet, the learned Tribunal in his wisdom chose to struck off the defence of respondent No. 1, which was not permissible under the law. 12. In result the petition is allowed. The impugned order is set aside. The respondent No. 1 before the Tribunal shall file reply to the petition on or before April 22, 2002. The case thereafter shall proceed in accordance with law. The parties shall appear before the learned Tribunal on the date fixed. Records of the case be sent back to the learned Tribunal immediately. CMP No. 505 of 2001 In view of the order passed in the main revision petition, interim order dated 19.12.2001 stands vacated and the application is disposed of. Petition allowed.