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2005 DIGILAW 1811 (MAD)

D. Henry Thiagaraj v. M. Azarish & Others

2005-11-29

R.BANUMATHI

body2005
Judgment :- This revision is preferred against the order of the II Assistant City Civil Court, Chennai made in I.A.No.22549 of 2004 in O.S.No.6750 of 2004, dismissing the petition seeking rejection of the written statement filed by the defendants 1, 2, 3 and 5. Plaintiff is the revision petitioner. 2. Dalit Liberation Education Trust (in short 'the Trust') was established in the year 1985. plaintiffs, D-1 and D-2 are the founding trustees. The revision petitioner/plaintiff was the managing trustee. On 14.2.2002, the Board of Trustees has passed resolutions, some of which were against the revision petitioner/ plaintiff. Thereafter, the plaintiff and others have filed multitude of suits. 3. O.S.No.6750 of 2004 was filed: (i) for declaration that the resolutions passed in the emergency meeting of the Trust Board Meeting of Dalit Liberation Education Trust held at Chennai on 21.6.2004 and 3.7.2004 as null and void; (ii) for a permanent injunction restraining the defendants from implementing the said resolutions passed on 21.6.2004 and 3.7.2004 and also restraining the second defendant from acting as the Managing Director and defendants 5, 6 and 7 as the arbitrators or the trust and other reliefs. When the suit was filed, Advocate Mr. Peppin Fernando has undertaken to file vakalat for R-1 in the injunction application. 4. I.A.No.22549 of 2004: Plaintiff has filed this petition for restraining the defendants 1 to 7 from interfering with the day-to-day affairs of the Trust on the basis of the resolutions passed in the Trust Board Meeting held on 21.6.2004 and 3.7.2004. On 19.1.2005, vakalat for defendants 1 to 3 and 5 was filed. Written statement was filed on 28.4.2005. Written statement filed in the suit was sought to be treated as counter statement in I.A.No.22549 of 2004. Plaintiff has raised objection on the ground that the written statement was not filed within the stipulated time and that the same cannot be treated as counter statement and the injunction application is to be allowed on the ground of non-filing of the counter statement. 5. The defendant resisted the contention, narrating the happenings in filing the counter statement. According to the defendants 1, 3 and 5, the Board or Trustees have also filed separate application for injunction restraining the plaintiff/revision petitioner from interfering with the administration of the Board of Trustees. In that application, the plaintiff has filed the counter. 5. The defendant resisted the contention, narrating the happenings in filing the counter statement. According to the defendants 1, 3 and 5, the Board or Trustees have also filed separate application for injunction restraining the plaintiff/revision petitioner from interfering with the administration of the Board of Trustees. In that application, the plaintiff has filed the counter. The applications filed by both the plaintiff and the revision petitioner were posted for enquiry. It is alleged that with an intention to avoid the Court from passing the order on merits, the plaintiff has raised the plea to reject the written statement. It is further alleged that the revision petitioner/plaintiff has preferred the revision to delay the enquiry proceedings in the I.As., filed by both the plaintiff and the Board of Trustees. In consideration of the submissions, the trial Court has found that the power of Court to extend the time for filing the written statement beyond the time schedule provided by O.8, Rule 1, C.P.C., is not completely taken away. Finding that the time stipulated is only a procedural directory and not mandatory, the learned Assistant Judge negative the contention the plaintiff, seeking rejection of the written statement and posted the suit for framing issues. 6. Aggrieved over the impugned order, plaintiff has filed this revision petition. As the impugned order, the learned counsel for the revision petitioner/plaintiff has submitted that the power to extend the time for filing the Written statement cannot be exercised without an application to receive the written statement. Placing reliance upon Kailash V Nanhku and others, (2005) 3 CTC 355, the learned counsel for the plaintiff has submitted that for receiving the written statement beyond thirty days, reasons are to be recorded and in the impugned order, no reasons are recorded for receiving the written statement. The learned counsel for the plaintiff has further submitted that extension of time for filing the written statement could be only by way of exception and such exceptional circumstance has not arisen in the instant case. The impugned order is attacked on the ground that when no application for extension of time was filed the Court cannot be benevolent in extending the time for filing the written statement as of routine. The impugned order is attacked on the ground that when no application for extension of time was filed the Court cannot be benevolent in extending the time for filing the written statement as of routine. In fairness, the learned counsel for the plaintiff has also drawn the attention of the Court to the decision of the Supreme Court reported in Rani Kusum v. Kanchan Devi and others, (2005) 4 L.W.277: (2005) 4 C.T.C.809, wherein the Supreme Court has held that the Court has power to hold the same as directory. 7. Countering the arguments, the learned counsel of the contesting respondents has also placed reliance upon the same decision Rani Kusum v. Kanchan Devi and others, (20 L.W. 277: (2005) 4 C.T.C.809. Drawing attention of the Court to the series of litigation filed by the plaintiff, the learned counsel for the contesting respondents has submitted that only on petition the Court has extended the time for filing of the written statement. It is further submitted that at the time of filing the written statement, the plaintiff has not raised any objection and when the injunction application was taken up for enquiry, nearly two months after the filing of the written statement, or the first time the plaintiff has raised objection to reject the written statement on the ground that the written statement was not filed within the stipulated time. Submitting that the procedure is only handmaid of justice and the time stipulated for filing O.8, Rule 1, C.P.C., is only directory, the learned counsel for the contesting respondents/defendants has submitted that the Court below was right in receiving the written statement filed on 26.4.2005 and that there is no reason warranting interference. 8. The only point that arises for consideration is, in the facts and circumstances of the case, whether the order receiving the written statement beyond ninety days suffers from serious and substantial error warranting interference. 9. Regarding the administration of the Trust, dispute arose between the parties. Defendants have stated that on 14.2.2002, Board of Trustees have passed some resolutions, some of which are against the revision petitioner, which has resulted in multitude of litigation. For appreciating the factual back ground, we may briefly refer to them. (a) O.S.No.2136 of 2002: This suit was filed by the revision petitioner/plaintiff before the V Assistant City Civil Court, challenging the validity of notice of emergent meeting. For appreciating the factual back ground, we may briefly refer to them. (a) O.S.No.2136 of 2002: This suit was filed by the revision petitioner/plaintiff before the V Assistant City Civil Court, challenging the validity of notice of emergent meeting. The suit was dismissed on 6.7.2005. (b) O.S.No.3909 of 2002: The supporters of the plaintiff have filed this suit on the file of V Assistant City Civil Court, challenging the co-option of two trustees. The said suit was also dismissed on 6.7.2005. (c) C.S.No.875 of 2002: The same supporters have filed the suit in the High Court to remove the Chairman of the Trust. In that suit, the revision petitioner/plaintiff supporting the cause of the third parties, filed the application in A.No.532 of 2004 seeking injunction against the Board from convening Board Meeting. The High Court has passed the order against the petitioner himself. (d) C.C.No.8841 of 2002: The revision petitioner/plaintiff has filed this criminal case on the file of the II Metropolitan Magistrate against the Chairman or the Trust for defamation. It is stated that the said case has been dismissed with strong observation against the petitioner. (e) O.S.No.4350 of 2002: Plaintiff has filed this suit on the file of the 11 Assistant City Civil Court. In the said suit in I.A.No.12851 of 2002, the Court has passed conditional order against the revision petitioner/plaintiff to convene the Board Meeting and give account in the Board. The revision petitioner is said to have violated the order and contempt application has been filed and the same is pending. Against the order in I.A.No.12651 of 2002, the plaintiff has filed C.M.A.No.175 of 2003, later that appeal has been withdrawn. The present suit O.S.No.6750 of 2004 is yet another proliferation of the litigation by the revision petitioner/plaintiff. Alleging that the plaintiff has engaged unruly elements inside the Trust premises and prevented the Board of Trustees from functioning, the Trustees have filed I.A.No.13122 of 2005 restraining the plaintiff from preventing the Board of Trustees from functioning. 10. The Court has insisted the parties to advance arguments both in I.A.No.22549 of 2004 and in I.A.No.13122 of 2005. It was at that stage the plaintiff has raised objection regarding the delay in filing the written statement by the contesting defendants. 10. The Court has insisted the parties to advance arguments both in I.A.No.22549 of 2004 and in I.A.No.13122 of 2005. It was at that stage the plaintiff has raised objection regarding the delay in filing the written statement by the contesting defendants. The contention raised by the plaintiff is to be considered in the light of his conduct in filing the number of litigation and the stage in which the objection was raised. 11. Non-raising of objection at the time of filing the written statement by the defendants 1 to 3 and 5 is yet another aspect to be noted. For proper appreciation of the contentions of both parties, we may usefully refer to the relevant dates and the stage of the suit: 28,12.2004: Counsel Mr. Peppin Fernando undertakes to file vakalath for R-1 in Injunction Application; 19.1.2005: Vakalath of D-1 to D-3 and D-5 filed fresh summons for D-4, D-6 to D-7 for the hearing on 11.2.2005 adjourned to 11.2.2005; 7.3.2005 and 29.3.2005, 21.4.2005; 21.4.2005: Vakalath filed for D-6. D-4 counsel undertakes D-3 called absent; set ex parte; 21.4.2005: On petition written statement of D-1 to D-3, D-5 filed. Adjourned to 25.4.2005; 25.4.2005: Written statement of D-1 filed, adopted by D-2, D-3 and D-5. For filing of Written Statement of D-4 and D-6 adjourned to 26.4.2005; 27.4.2005; 29.4.2005 and 7.6.2005; 7.6.2005: Written statement of D-4 and D6 not filed D-4 and D-6 called absent; set ex parte. 12. Written statement has been adopted as the counter in I.A.No.22549 of 2004. Based on the counter, injunction application was argued and the same is in the part heard stage. Then the Presiding Officer was transferred to the First Assistant Court and the present Presiding Officer has taken charge. It was at that stage, the plaintiff has insisted the Court to reject the written statement, which was received by the earlier Presiding Officer. Upon hearing the parties, the Court has passed the order negative the contention raised by the revision petitioner/plaintiff. 13. In the above facts and circumstances of the case, and the series of litigation filed by the plaintiff, the contention raised by him is to be considered. By 2002 amendment defendant is to file written statement within thirty days from the date of the service of summons but such date can be extended up to ninety days by the Court for the reasons to be recorded in writing. By 2002 amendment defendant is to file written statement within thirty days from the date of the service of summons but such date can be extended up to ninety days by the Court for the reasons to be recorded in writing. The defendants have entered appearance through their counsel on 28.12.2004. But the written statement was filed on 25.4.2005 beyond ninety days. On the earlier hearing, the Court has extended the time for filing the written statement of D-1 to D-3 and D-5, since the other defendants D-4, D-6 and D-7 were not served. On 21.4.2005, petition was filed on behalf of D-1 to D-3 and D-5 seeking extension of time for filing the written statement and allowing that application the Court has adjourned the suit to 25.4.2005, on which date, written statement was filed. The written statement was thus filed only upon extension of time by the Court, on petition. 14. It is thus clear that from the above said dates and the stage of the suit, it is seen that only on petition filed on behalf of D-1 to D-3 and D-5, the Court has granted time for filing the written statement, adjourning the matter to 25.4.2005 on which date, the written statement of D-1 was filed, adopted by D-2, D-3 and D5. The revision- petitioner is not right in contending that the written statement filed beyond ninety days was received as of routine. When the written statement was filed and received, having remained silent, the plaintiff is not justified in raising the objection when the injunction application was taken up for hearing. 15. The learned counsel for the revision petitioner/plaintiff has submitted that time could be extended for the filing of the written statement only in exceptional cases and for reasons to be recorded and the trial Court has not recorded any reasons for receiving the written statement and that the Court cannot be benevolent in extending the time as of routine. In support of his contention that the Courts are to be strict in adhering to the mandatory requirement of O.8, Rule 1, C.P.C., the learned counsel for the plaintiff has relied upon Kailash v. Nanhku and others, (2005) 3 C.T.C. 355. In support of his contention that the Courts are to be strict in adhering to the mandatory requirement of O.8, Rule 1, C.P.C., the learned counsel for the plaintiff has relied upon Kailash v. Nanhku and others, (2005) 3 C.T.C. 355. That case arose out of an election petition and the Supreme Court has observed that only in exceptional situations, the Court may extend the time for filing the written statement, though the period of thirty days and ninety days referred to in the provision has expired. Placing much reliance upon the above decision, the learned counsel for the revision petitioner contended that extension of time can only be by way of exception and for reasons assigned by the defendant and recorded in writing by the Court to its satisfaction and such exceptional situation does not arise in the case in hand and the Court below erred in receiving the written statement. Considering the time schedule contemplated by O.8, Rule 1, C.P.C., in the said decision, the Supreme Court has summed up the conclusion as under: " (iv) The purpose of providing the time schedule for filing the written statement under O.8, Rule 1, CPC, is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though, the language of the proviso to Rule 1 of O.8, C.P.C., is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the procedural law, it has to be held, directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by O.8, Rule I of the C.P.C., is not completely taken away. (v) Though O.8, Rule 1 of the C.P.C., is a part of procedural law and hence directory, keeping in view the need for expeditious trial of civil cases which persuaded the Parliament to enact the provision in its present from it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure there from would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be a] lowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Cost may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case." 16. Even in the said decision, the Supreme Court has observed that the time stipulated under O.8, Rule 1, C.P.C., is only directory and not mandatory in character. As noted earlier, only on petition, the Court has extended time for filing the written statement. 17. By Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (in short 'the 1999 Amendment Act') the text of O.8, Rule 1 was sought to be substituted in a manner that the power of Court to extend the time for filing the written statement was so circumscribed as would not-permit the time being extended beyond 30 days from the date of service of summons on the defendant. Due to resistance from the members of the Bar against enforcing such and similar other provisions sought to be introduced by way of amendment, the Amendment Act could not be, promptly notified for enforcement. The text of the provision in the present form has been introduced by the Amendment Act with effect from 1.7.2002. The purpose of such like amendments is stated in the statement of objects and reasons as "to reduce delay in the disposal of Civil Cases. 18. The text of the provision in the present form has been introduced by the Amendment Act with effect from 1.7.2002. The purpose of such like amendments is stated in the statement of objects and reasons as "to reduce delay in the disposal of Civil Cases. 18. O.8, Rule 1, as it stands now, reads as under: Written statement: The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defiance: "Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be a] lowed 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." 19. After amendment, O.8, Rule 1, C.P.C., cast an obligation on the defendant to file the written statement within thirty days from the date of service of -summons on, him and, within the stipulated time falling within ninety days. In Rani Kusum v. Kanchan Devi and others, (2005) 4 L.W 277: (2005) 4 CTC 809, the Supreme Court has elaborately considered the time contemplated under O.8, Rule 1, C.P.C., and held that the amended provision does not deal with or take away the power of the Court to receive the written statement though filed beyond time. The Supreme Court has further held that the provision is only procedural and not part of substantive law and the object is to expedite the trial Court and not to scuttle the same. In the above said decision, the Supreme Court has held: "O.8, Rule 1, after the amendment casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time failing within ninety days. The provision does not deal with the power of the Court and also does not specifically take away the power of the Court to take the written statement on record though filed beyond the time as provided for. Further, the nature of the provision contained in O.8, Rule 1, is procedural. It is not a part of the substantive law. The provision does not deal with the power of the Court and also does not specifically take away the power of the Court to take the written statement on record though filed beyond the time as provided for. Further, the nature of the provision contained in O.8, Rule 1, is procedural. It is not a part of the substantive law. Substituted O.8, Rule 1, intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the plaintiffs and petitioners approaching the Court for quick relief and also to the serious inconvenience of the Court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied Justice hurried may in some cases amount to justice buried. 11. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of procedural law may be liberal, or, stringent, but the fact remains that the, object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of the C.P.C., or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice." The Supreme Court has referred and quoted Kailash v. Nanhku, (2005) 3 C.T.C 355, the Supreme Court has also referred to Salem Bar Association Case, J.T (2002) 9 S.C. 175, and the Committee's Report regarding O.8, Rule 1, C.P.C., and the Supreme Court has held: “The question is whether the Court has any power or jurisdiction to extend the period beyond 90 days. The maximum period of 90 days to file written statement has been provided but the consequences on failure to file written statement within the said period have not been provided for in O.8, Rule 1. The point for consideration is whether the provision providing for maximum period of ninety days is mandatory and, therefore, the Court is altogether powerless to extend the time even in an exceptionally hard case. 18. It has been common practice for the parties to take long adjournments for filing written statement. The point for consideration is whether the provision providing for maximum period of ninety days is mandatory and, therefore, the Court is altogether powerless to extend the time even in an exceptionally hard case. 18. It has been common practice for the parties to take long adjournments for filing written statement. The legislature with a view to curb this practice and to avoid unnecessary delay and adjournments has provided for the maximum period within which the written Statement is required to be filed. The mandatory or directory nature of O.8, Rule 1, shall have to be determined by having regard to the object sought to be achieved by the amendment. It is, thus, necessary to find out the intention of the legislature. The consequences which may follow and whether the same were intended by the legislature have also to be kept in view." 20. Having regard to the object sought to be achieved by the Amendment Act i.e., to curtail unnecessary delays and adjournments, the Supreme Court has consistently taken the view that the time stipulated under O.8, Rule 1, C.P.C., is only directory and not mandatory. In exceptional cases, the Court can extend the time for filing the written statement. With the series of litigation filed against the Trust, the Court below was justified in extending the time for filing the written statement. Procedural law is only an handmaid of justice. Having remained silent at the time when the written statement was filed, the plaintiff cannot take advantage of the delay in filing the written statement at the stage when it was directed to advance arguments against the injunction application. The intention of the plaintiff appears to be to delay the enquiry proceedings in the injunction application I.A.No.22549 of 2004 and the application filed by the Trustees I.A.No.30122 of 2005. Objection raised by the plaintiff regarding receiving of the written statement has no substance. This revision has no merits and is bound to fail. 21. For the reasons stated supra, the order of the II Assistant, City Civil Court, Chennai, dated 29.6.2005, made in I.A.No.22549 of 2004 in O.S.No.6750 of 2004 is confirmed and this revision is dismissed. Consequently, C.M.P.No.13900 of 2005 and V.C.M.P.No.16330 of 2005 are also dismissed In the circumstances of the case there is no order as to costs. 22. 21. For the reasons stated supra, the order of the II Assistant, City Civil Court, Chennai, dated 29.6.2005, made in I.A.No.22549 of 2004 in O.S.No.6750 of 2004 is confirmed and this revision is dismissed. Consequently, C.M.P.No.13900 of 2005 and V.C.M.P.No.16330 of 2005 are also dismissed In the circumstances of the case there is no order as to costs. 22. The learned II Assistant City Civil Court, Chennai is directed to expedite the trial in O.S.No.6750 of 2004 and dispose the same expeditiously in accordance with law. Order accordingly.