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2005 DIGILAW 3299 (RAJ)

Amolak Singh Gulab Singh v. Civil Judge

2005-12-14

DINESH MAHESHWARI

body2005
Honble MAHESHWARI, J.–These four writ petitions, although relate to different Civil Original Suits, involve a common short point and have been submitted against the similar nature order dated 8.8.2005 passed in all the four suits, hence were heard together and are taken up for final disposal by this common order. (2). The petitioner M/s. Amolak Singh Gulab Singh is the defendant in four Civil Original Suits filed against it by different plaintiffs for recovery of different amount which are pending in the Court of Civil Judge (Senior Division), Sri Ganganagar. For clarification, the particulars of these four suits, their valuation and the names of the plaintiffs (who are respondent No.2 in the respective writ petition) could be usefully referred as under:- Writ Petition No. C.O. Suit No. Name of Plaintiff Valuation of Suit 6033/2005 20/2004 Manjeet Singh Rs. 36,231.15 6079/2005 34/2004 Jagsir Singh Rs. 40,040.00 6081/2005 35/2004 Bhag Singh Rs. 30,079.90 6082/2005 22/2004 Gurpreet Singh Rs. 26,844.00 (3). It appears that in Civil Original suit Nos. 34/2004 and 35/2004 that the petitioner was served with the summons of 22.2.2005, whereas in Civil Original Suit Nos. 20/2004 and 22/2004 it was served with the summons on 22.3.2005. However, common feature remains that in all the suits aforesaid, the written statement was filed by the petitioner only on 3.8.2005 which was object to by the plaintiffs on the ground that the same having been filed beyond the period of 90 days as envisaged by Order 8 Rule 1 of the Code of Civil Procedure (CPC0, could not be taken on record. the learned trial court by way of separate but similar orders dated 8.8.2005 in all the suits has proceeded to uphold the objections raised by the plaintiffs and has refused to take the written statements on record. (4). Assailing the orders passed by the learned trial court, it has been contended on behalf of the petitioner that the trial court ought to have taken the written statements on record in the interest of justice and particularly in view of the fact that on5.7.2005, the Court itself adjourned the case and permitted filing of written statement by 3.8.2005, the Court ought not to have denied taking such written statements on record which were admittedly filed on 3.8.2005 and that the rules of procedure ought to be given liberal construction for the purpose of opportunity of defence to the defendant-petitioner. (5). (5). The order impugned has been supported on behalf of the plaintiff-respondent No.2 with the submissions that the written statement having been filed in these cases much beyond the period of 90 days, and no exceptional circumstances having been shown, the trial Court has rightly rejected the prayer for taking of the written statements on record. (6). having given a thoughtful consideration to the rival submissions and having examined the material produced n record, this court is clearly of opinion that the impugned order dated 8.8.2005 cannot be sustained. (7). It is not in dispute that in all the Civil Original Suits aforesaid, the trial court had fixed the date of 4.7.2005 and that being a holiday, the cases were taken up on 5.7.2005 and identical orders were passed which read as under:- fnukad 4-7-2005 dk vodkk gksus ls fely vkt iskh esa vk;hA odqyk;s vkt U;k;ky;ksa esa gkthj ugha vk jgs gSA fely isk gksus tokcnkok fnukad 3-8-2005 dks isk gksA (8). On the next date of 3.8.2005, admittedly the written statements were put in by the defendant. The trial Court itself having granted time on5.7.2005 when the counsel were not available in the Court and having fixed the date of 3.8.2005 for filing of written statements, neither the objection raised by the plaintiff could be said to be justified nor the trial Court has proceeded in proper exercise of its jurisdiction in refusing to take the written statement filed on3.8.2005 on record. (9). The Honble Supreme Court in the case of Saleem Advocate Bar Association, Tamil Nadu vs. Union of India (2005(2) WLC (SC) Civil 242), after considering various provisions of the Code of Civil Procedure particularly with reference to the Amendment Act, 1999 and 2002 has been placed to lay down various principles and in relation to the provisions of Order 8 Rule 1 of the Code of Civil Procedure, the Honble Supreme Court has been pleased to observe that the rule in question is to advance the cause of justice and not to defeat it. Construction of rules of procedure which promotes justice and prevents its miscarriage has to be preferred. The Honble Supreme Court has been pleased to hold thus:- ``.....In construing the provision of Order VIII Rule 1 and Rule 10 the doctrine of harmonious construction is required to be applied. Construction of rules of procedure which promotes justice and prevents its miscarriage has to be preferred. The Honble Supreme Court has been pleased to hold thus:- ``.....In construing the provision of Order VIII Rule 1 and Rule 10 the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the Court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 9 days provided in Order VIII Rule 1. There is no restriction in Order VIII Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to `make such order in relation to the suit as it thinks fit. Clearly, therefore, the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII Rule 1. (10). When the time limit provided in Order 8 Rule 1 of the Code of Civil Procedure is taken to be directory, it is apparent at once that denial of written statement on mere mathematical calculation of 90 days is not envisaged by the legislature. (11). Having regard to the facts and circumstances of the present case, it appears that the defendant was of course served on 22.2.2005 and on 22.3.2005 in respect Civil Original Suits, nevertheless the fact remains that these are the suits for recovery of money and no reason has been assigned for which the defendant would be intentionally avoiding to submit its written statement within time. (12). Moreover, it appears with reference to the calendar of the Courts that in these cases the date of 4.7.2005 was fixed which was apparently the reopening day after summer vacations and the matters were takenup on 5.7.2005 for the date fixed being a holiday. (12). Moreover, it appears with reference to the calendar of the Courts that in these cases the date of 4.7.2005 was fixed which was apparently the reopening day after summer vacations and the matters were takenup on 5.7.2005 for the date fixed being a holiday. Unfortunately, on that day of 5.7.2005, as recorded by the trial Court, counsel were not attending the Court and the Court itself fixed the date of 3.8.2005 for filing of written statement. It appears that the date of 4.7.2005 was fixed keeping in view the time limit under Code of Civil Procedure and so also for providing maximum time to the defendant to submit written statement but the same was not submitted for the Counsel not attending the Court. On an overall comprehension of the facts and circumstances of the case and particularly in view of the fact that the trial Court itself had fixed the date of 30.8.2005 for filing of written statement, this court is of opinion that the learned trial court was not justified in refusing to take on record the written statements in each of these cases. (13). It is to be imbibed that rules of procedure are intended to subserve the cause of justice and in the trial of civil suits the procedure is adopted by the Court concerned so as to advance the cause of justice providing fair opportunity of presenting their case to all the parties. The Court has inherent power to do real and substantial justice for which it exists and it is always preferred to decide an issue on merits instead of driving out a party from the Court on technicalities. (14). On the facts and in the circumstances of these cases, the impugned order dated 8.8.2005 cannot be sustained and deserve to beset aside and the written statements deserve to be taken on record. However, the petitioner having also contributed to the delay in progress of the suit, deserves to be saddled with reasonable costs. Having regard to all the facts and circumstances,it appears appropriate that the written statement in each of the Civil Original Suits aforesaid be taken on record on payment of costs of Rs.550/- in each case. (15). As a result of the aforesaid, these writ petitions are allowed, the impugned orders dated 8.8.2005 in Civil Original Suit Nos. Having regard to all the facts and circumstances,it appears appropriate that the written statement in each of the Civil Original Suits aforesaid be taken on record on payment of costs of Rs.550/- in each case. (15). As a result of the aforesaid, these writ petitions are allowed, the impugned orders dated 8.8.2005 in Civil Original Suit Nos. 20/2004, 34/2004, 35/2004 and 22/2004 respectively are set aside and the written statements already filed by the petitioner are permitted to be taken on record on the condition of the petitioner making a payment of Rs.550/- as costs in each case to the plaintiff on or before next date of hearing fixed by the trial Court. There shall be no order as to costs of these writ petitions. A copy of this order be placed on the record of each of the writ petition. _