Research › Search › Judgment

Jharkhand High Court · body

2005 DIGILAW 177 (JHR)

Jatinder Singh Hanspal v. Tejinder Singh

2005-02-24

M.Y.EQBAL

body2005
JUDGMENT M.Y. Eqbal, J. 1. Since in these two writ petitions common question of law is involved, they have been heard together and are being disposed of by this common order. 2. In W.P.C. No. 822 of 2005, the defendant-petitioner has challenged the order dated 6.1.2005 passed by Munsif, Jamshedpur in Title Suit No. 158 of 2003 whereby he has rejected the petitioners petition for accepting written statement for which the petitioner was debarred earlier. 3. Similarly in W.P.C. No. 823 of 2005, the petitioner has challenged the order dated 10.8.2004 passed by Sub-Judge-I, Garhwa in Partition Suit No. 28/1998 whereby he has refused to recall the earlier order dated 10.8.2004 by which the petitioner was debarred from filing written statement. 4. The only question that falls for consideration is whether the Court in its discretion extends the time for filing written statement beyond the period fixed under the provision of Order VIII, Rule 1 of the Code of Civil Procedure. 5. Order VIII, Rule 1 of the Code of Civil Procedure reads as under: "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." 6. By the Code of Civil Procedure (Amendment) Act, 1999 the time limit of thirty days was fixed for the defendant for filing written statement. By the Code of Civil Procedure (Amendment) Act, 2002 the defendant may be allowed to file written statement on such other date as may be specified by the Court, but which shall not be later than ninety days from the date of service of summons. The new provisions require the defendant to present a written statement within thirty days from the date of service of summons on him. 7. The present Rule has made it obligatory for the defendant to file written statement on his own in all cases. The new provisions require the defendant to present a written statement within thirty days from the date of service of summons on him. 7. The present Rule has made it obligatory for the defendant to file written statement on his own in all cases. However, in absence of non-obstante clause in Order VIII, Rule 1 the power of Court to grant further extension has been saved by Section 148 of the Code of Civil Procedure with certain limitations. Section 148 reads as under: "148. Enlargement of time.--Where any period is fixed or granted by the Court for the doing of any act as prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, [not exceeding thirty days in total,] even though the period originally fixed or granted may have expired." 8. The aforesaid section has also been amended and limitation for extending the time not exceeding thirty days in all has been prescribed. Previously discretion was given to the Court to enlarge the period fixed or granted by the Court for the doing of any act prescribed by the Code. The present amendment put a limit of thirty days on the enlargement of such period. The words "not exceeding thirty days in total" have been inserted with a view to curtail procedural delay caused by any party to the suit or proceeding. 9. In my opinion, therefore, besides the time allowed by the Court under Order VIII, Rule 1, CPC Court can in its discretion extend and allow further time in exceptional circumstances and after recording reasons for filing written statement but in no case the defendant shall be allowed more than thirty days extra time by the Court exercising its discretion under Section 148 of the Code of Civil Procedure. In other words, if the Court allows time in excess of limitation fixed under Order VIII, Rule 1 and Section 148, CPC, the very object and purpose of amendment brought in the Code of Civil Procedure shall be frustrated. 10. I fully rely upon the ratio decided by a Bench of this Court (Honble P.K. Balasubramanyan, CJ. as he then was) in the case of Sri Lalit Chandra Raisurana v. Sri Arun Raisurana, reported in, 2004 (4) JLJR 428 . His Lordships observed : "4. 10. I fully rely upon the ratio decided by a Bench of this Court (Honble P.K. Balasubramanyan, CJ. as he then was) in the case of Sri Lalit Chandra Raisurana v. Sri Arun Raisurana, reported in, 2004 (4) JLJR 428 . His Lordships observed : "4. It is true, as has been held by the Karnataka High Court in A. Sathyapal v. Yasim Banu Ansari, AIR 2004 Karnataka 246, that the time fixed by the Order VIII, Rule 1 of the Code of Civil Procedure subject to its proviso, is mandatory and the power, if any, available to the Court for extension of time, would be very limited, if not altogether denied, if he go by the words of Order VIII, Rule 1 of the Code of Civil Procedure. On an examination of that decision, I find that Court has also taken the view that since the outer time limit for filing a written statement is fixed by Order VIII, Rule 1 of the Code and not by any order of Court, the power of extension available under Section 148 of the Code, subject to the limitation introduced therein by the amendment, cannot be exercised. In a way, the decision of the Karnataka cannot be said to be not justified, taking note of the purpose with which amendment to Order VIII, Rule 1 of the Code of Civil Procedure was made. But, at the same time, is it necessary to denude the Court dealing with a lis of even a limited power of granting sometime to a defendant for filing a written statement in an appropriate case? No doubt, when the Parliament expressed an intention that the provision in that behalf must be followed, the Court has necessarily to proceed on that basis. But at the same time, when the power of the Court to extend some sort of a locus paenitentiae to a defendant is saved by Section 148 of the Code of Civil Procedure, should the Court be deprived of that discretion? But at the same time, when the power of the Court to extend some sort of a locus paenitentiae to a defendant is saved by Section 148 of the Code of Civil Procedure, should the Court be deprived of that discretion? I think that on a balancing of all aspects and considering the harsh consequence that arises out of barring a defendant from filing a written statement on the ground that he has not filed it within 90 days of the receipt of summons the Court must be held to have that limited power if the defendant shows sufficient cause for extending the time beyond 90 days but within the limits of the proviso to Section 148 of the Code. 5. Even though an outer limit may be fixed by Order VIII, Rule 1 of the Code of Civil Procedure in the matter of filing a written statement, normally it is the Court, that by an order of its own, fixes the actual time for filing a written statement, no doubt, within the period contemplated by Order VIII, Rule 1 of the Code. When a Court fixes the time for doing something, the Court has normally the power to extend that time and that power is saved by Section 148 of the Code of Civil Procedure. That power under Section 148 of the Code was unlimited, until it was curtailed by the recent amendment brought in force on 1.7.2002. By that amendment, the power to extend time under Section 148 of the Code has been limited to one month. It appears to me that in the interests of Justice and on a harmonious construction of Order VIII, Rule 1 and Section 148 of the Code, it is possible to hold that even in a case where the written statement has not been filed within 90 days of receipt of summons by a defendant, in an appropriate case, on his showing good cause, the Court can extend the time beyond the period of 90 days but limited to 30 days therefrom. In other words, the Court cannot, in any event, extend the time for filing a written statement beyond 120 days of the receipt of the summons by the defendant. But that would not mean that in every case the Court must automatically extend the time or can extend the time beyond the 90 days. In other words, the Court cannot, in any event, extend the time for filing a written statement beyond 120 days of the receipt of the summons by the defendant. But that would not mean that in every case the Court must automatically extend the time or can extend the time beyond the 90 days. The Court can do so only in those cases, where good cause is made for not adhering to the time schedule fixed by Order VIII, Rule 1 of the Code of Civil Procedure as controlled by the proviso to that Rule. To that extent, I am inclined to deviate from the ratio of the decision of the Karnataka High Court, in the decision referred to above." 11. Coming back to the instant case (W.P.C. No. 822 of 2005) summons in Title Suit No. 158 of 2003 was served upon the petitioner and after service of summons he appeared on 20.5.2004 but did not file written statement till 7.9.2004. When the Court below by order debarred him from filing written statement, it was only, thereafter, the petitioner filed a petition on 4.10.2004 with a prayer to accept written statement. The Court below refused to allow the petitioner to file written statement. 12. In W.P.C. No. 823 of 2005, initially the suit was proceeded ex parte for non-appearance of the defendant and for not filing written statement. After the ex parte judgment was set aside by the Court on 13.8.2003, the petitioner was given opportunity of filing written statement but the same was not filed. The Court-below by order dated 10.8.2004, debarred the defendant-petitioner from filing written statement. Thereafter the petitioners prayer for acceptance of written statement was refused. 12. As a matter of facing order to check and stop the dilatory tactics adopted by the defendant the provision of Order VIII, Rule 1 has been amended and period has been fixed for filing written statement. 13. In the instant cases, as noticed above, defendant- petitioners failed to file written statement in spite of sufficient opportunity given to them. The Court below, therefore, rightly refused to accept the written statement of the petitioners. 14. In the facts and circumstances of the case, I do not find any reason to interfere with the impugned orders. 15. These two writ petitions are, therefore, dismissed.