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2004 DIGILAW 1333 (PNJ)

Mohinder Singh v. Sardool Singh

2004-12-09

M.M.KUMAR

body2004
Judgment M.M.Kumar, J. 1. This petition filed under Article 227 of the Constitution prays for quashing order dated 17.9.2004 passed by the Additional Civil Judge (Sr. Division), Gurdaspur striking off the defence of the defendant-petitioner for his failure to file the written statement despite the fact that he has been appearing before the Court through counsel since 12.4.2004. 2. Brief facts of the case are that plaintiff-respondents 1 to 5 filed Civil Suit No. 150 on 28.8.2002 against the defendant-petitioner and defendant-respondents 6 to 26 seeking a declaration to the effect that plaintiff-respondents 1 to 5 and the defendant-petitioner as well as defendant-respondents 6 and 7 are co-sharers in the suit land. After the issuance of summons and service of the same the defendant-petitioner appeared before the Court through his counsel on 12.4.2003. The case has been adjourned from time to time for effecting service on other unserved defendant-respondents. There are various interlocutory orders dated 8.11.2002, 13.1.2003, 25.2.2003, 12.4.2003, 29.4.2003, 12.6.2003, 21.10.2003, 23.10.2003, 4.2.2004, 2.4.2004, 26.5.2004 and the impugned order dated 12.8.2004. These orders show service on one or the other defendant-respondent or initiation of ex parte proceedings on the served defendant-respondents. When the defendant-petitioner failed to file the written statement within a period of 30 days from the date of service or maximum period of 90 days as provided by Order VIII Rule 1 of the Code of Civil Procedure, 1908 (for brevity, the Code), the learned Civil Judge by relying on Order VIII Rule 1 of the Code has struck off the defence of the defendant-petitioner. 3. Learned counsel for the defendant petitioner has vehemently argued that he may be permitted to file his written statement by affording him one opportunity. According to the learned counsel, the provisions of Order VIII Rules 1, 8 and 9 of the Code are directory in nature and no not call for adherence to the time schedule specified therein. In support of his submission, the learned counsel has placed reliance on a Division Bench judgment of Bombay High Court in the case of Chintamani Sukhdeo Kaklij v. Shivaji Bhausaheb Gadhe, 2004(4) R.C.R. (Civil) 590 and argued that in cases of extreme difficulties and extra ordinary situation, relaxation in time limit imposed by Order VIII Rule 1 of the Code may be necessary. 4. 4. I have thoughtfully considered the submissions made by the learned counsel and do not feel persuaded to accept the same. It is necessary to make a reference to Order VIII. Rule 1 of the Code which reads as under:- ORDER VIII [WRITTEN STATEMENT, SET-OFF AND COUNTER-CLAIM] [1. Written statement The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: PROVIDED that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. [1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him. (1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set off or counter claim, he shall enter such document in a list, and shall produce it in court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement. (2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is. [(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.] (4) Nothing in this rule shall apply to documents- (a) produced for the cross-examination of the plaintiffs witnesses, or (b) handed over to a witness merely to refresh his memory.] 5 A perusal of the aforementioned provision shows that written statement by a defendant is required to be filed within a period of 30 days from the date of service in cases where a defendant fails to file the written statement within the stipulated period of 30 days, time can be extended further by the Court for reasons to be recorded in writing upto a maximum period of 90 days. The provision is the result of a drive against any possible delay which the persons like the defendant-petitioner may like to cause in culmination of civil proceedings. The under-lying aim appears to be that the possibility of concocting a defence or forging a document to prepare a false defence may be obviated. The basic object of these provisions would be defeated if any other interpretation is preferred. 6. However, under Article 227 of the Constitution there may be a situation where a defendant, who has failed to file the written statement within the statutory stipulated period may be able to show that there would be failure of justice resulting from the non-filing of written statement. In every case, it cannot be presumed that non filing of written statement would invariably result into failure of justice. A case has to be built up in order to prove failure of justice or extra ordinary exceptional circumstances which may necessitate the extension in time for the purposes of filing the written statement. The view taken by the Division Bench of Bombay High Court in the case of Chintaman Sukhdeo Kaklij (supra) has to be appreciated in that context. In order words, the provisions are ordinarily considered to be mandatory but only admit of rare exceptions exhibiting either failure of justice or extra ordinary factual circumstances which may be out of the control of the party concerned; and which may justify the extension of time in filing of the written statement. It is further appropriate to mention that the legislature has deliberately used the expression from the date of service of summons instead of the first hearing which further narrow down the discretion vested in the Court. Therefore, I am of the considered view that the provision is mandatory in character and ordinarily does not call for any exception as has been held by a Division Bench of Karnataka High Court in the case of A. Sathyapal v. Yasmin Banu Ansari, 2004(4) R.C.R. (Civil) 21. 7. If the principles as culled out in the preceding paragraphs are applied to the instant case, it becomes evident that the defendant-petitioner was simply negligent in filing the written statement. There is no argument raised to justify the delay in filing the written statement warranting extension of time beyond the period of 90 days. In the instant case, the delay is of about 19 months. There is no argument raised to justify the delay in filing the written statement warranting extension of time beyond the period of 90 days. In the instant case, the delay is of about 19 months. No explanation has been put forth. Therefore, I do not find any legal infirmity in the order of learned Civil Judge and the instant petition is liable to be dismissed. 8. For the reasons recorded above, this petition fails and the same is dismissed.