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2005 DIGILAW 351 (KAR)

MAHADEVAMMA v. MAHADEVAMMA

2005-06-08

H.G.RAMESH, P.VISHWANATHA SHETTY

body2005
VISHWANATHA SHETTY,J. ( 1 ) IN this reference made under Section 113 of the code of Civil Proedure (hereinafter referred to as the CPC'), the Court of Principal Civil judge (Jr. Dn.) and Additional JMFC, nanjangud, (hereinafter referred to as 'the trial Court') has sought the opinion of this court on three points. They read as here under:a]. The Hon'ble High Court in A. Satyapal's case, and Kaithan's case cited supra, has held that once a defendant is served with summons, he has to file written statement within 90 days and whether the said mandate applies to a public offer who opts to make reference to Government under Order 27 Rule 7 CPC. B]. Under Rule 7 (2) of Order 27 CPC, the word shall is used and whether the same is mandatory or directory in nature. C]. Proviso to Rule 7 (2) of Order 27 CPC states that "court shall extend time for so long as appears to it as necessary" and whether the same means such extension of time is to be within 90 days from the date of service or can it be extended up to a reasonable time crossing 90 days barrier. " ( 2 ) BEFORE we proceed to consider the points referred to above, we find it useful to extract Order VIII Rule 1 as amended by means of Act No. 46 of 1999 and Order XXVII rule 7 of the CPC. The same reads as here under : order VIII Rule 1 reads as hereunder :"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. "order XXVII Rule 7 reads as hereunder :"7. "order XXVII Rule 7 reads as hereunder :"7. Extension of time to enable public officer to make reference to Government.- (1) Where the defendant is a public officer and, on receiving the summons, considers it proper to make a reference to the Government before answering the plaint, he may apply to the Court to grant such extension of the time fixed in the summons as may be necessary to enable him to make such reference and to receive orders thereon through the proper channel. (2) Upon such application the Court shall extend the time for so long as appears to it to be necessary. " ( 3 ) SINCE all the points referred to by the trial Court are inter-connected, we will proceed to answer all the three points together. ( 4 ) IT is neessary to point out that subsequent to the reference made by the Trial court, the Supreme Court in the case of kailash v. Nanhku and others reported in 2005 AIR SCW 2346 : ( AIR 2005 SC 2441 ), has taken the view that the provisions contained in Order VIII Rule 1 of the CPC is directory in nature. It is useful to refer to the observations made by the Supreme court in the said case at paragraphs 45 (iv) and (v) of the judgment which read as hereunder :"45. We sum up and briefly state our conclusions as under : (i) to (iii) xxx (iv) The purpose of providing the time schedule for filing the written statement under Order VIII Rule 1 of 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 in the power of the Court to extend the time. Though, the language of the proviso to Rule 1 of Order viii of the CPC 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 Order VIII, Rule 1 of the CPC is not completely taken away. 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 Order VIII, Rule 1 of the CPC is not completely taken away. (v) Though Order VIII, Rule 1 of the CPC is a part of procedural law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of expectation. 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 allowed 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. Costs 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. " ( 5 ) THEREFORE, in the light of the law laid down by the Supreme Court in the case of kailash (supra), the Division Bench judgment of this court in the case of A. Sathyapal and Others v. Smt. Yasim Banu Ansari and Another reported in ILR (2004) 2 Kar. 1399 : (AIR 2004 Kant 246) no longer holds the field. Therefore, the questions referred to this court, in our view, become purely academic as the Court has the power to extend the time to file written statement even after the expiry of 90 days even in cases where the defendant in the suit is not a public officer. However, since the questions have been referred to us we find it appropriate to answer the reference. However, since the questions have been referred to us we find it appropriate to answer the reference. ( 6 ) ORDER VIII Rule 1 of the CPC provides for the time limit prescribed to file the written statement. However, sub-rule (1) of Rule 7 of Order XXVII provides that where the defendant in the suit is a public officer, the said public officer, on service of suit or summons before filing the written statement, if he considers it proper to make a referene to the Government before answering the plaint, he may apply to the Court to grant such extension of time fixed in the summons as may be necessary to enable him to make such reference and to receive such orders thereon. Sub-rule (2) of Rule 7 of Order xxvii further provides that if such an application is made, the Court shall extend the time so long as it appears to be necessary. Therefore, sub-rule (1) of Rule 7 of Order xxvii enables the defendant, who is a public officer, to make an application seeking for extension of time for filing the written statement. Sub-rule (2) of the said Rule requires the Court to extend the time notified to file written statement. No doubt, the words used in sub-rule (2) of Rule 7 of Order XXVII is that the Court shall extend the time so long as It appears to it to be necessary'. The language employed in sub-rule (2) referred to above, is that 'the Court shall extend the time. Therefore, when an application is made by a public officer, who is the defendant in the suit seeking for extension of time, the Court is required to apply its wind with regard to the ground made out seeking for extension of time and if the circumstances pleaded by the defendant is justified for grant of extension of time, the Court has to extend the time. Now, the question is, merely because the word 'shall' is used whether the same has to be understood as mandatory by curtailing the discretion conferred on the court either to extend the time or not to extend the time to file the written statement, if the ground pleaded does not justify for extension of time? It is well settled that though the word 'shall' is used, it may, depending upon the facts and circunstances of the case, could be understood as 'may'. It is well settled that though the word 'shall' is used, it may, depending upon the facts and circunstances of the case, could be understood as 'may'. In this connection, it is useful to refer to the observation made by the Supreme Court in the case of Shibu Chandra Dhar v. Pasupati nathauddya reported in AIR 2002 SC 1252 . At paragraph 14 and 15 of the judgment, it is observed as follows :"14. We are unable to acct. pt Mr. Mukherjee's submission that the Court has no power to extend time under Section 17 of the said Act. The said Act is a beneficial legislation. Such a statute has to be liberally construed so as to ensure that the statutory purpose is fulfilled and not frubt rated. Prior to its amendment Section 17 provided that a tenant could, within the time provided in sub-section (1) of Section 17, deposit or pay the amount to the land and that if he fails to deposit the Court shall order the defence against delivery of possession to be struck off. Thereafter, by the Amendment act, sub-sections (2a) and (2b) of Section 17 were added. At the same time Sections 17a to 17d were added. Undoubtedly, subsection (2b) of Section 17, read by itself, conveys an impression that it is mandatory in nature. However, sub-section (2b) of Section 17 cannot be read in isolation. Sub-section (2b) of Section 17 has to be read along with sub-section (2a) of Section 17 and Sections 17a to 17 D. Sub-section (2a) of Section 17 gives a Court the power to extend time on an application by the tenant. The court can permit the tenant to deposit or pay in instalments on terms as may be fixed by the Court. The wordings of sub-section (2a) of Section 17 are wide. They show that a tenant could make an applications for extension of time on more than one occasion. The Court has power to enlarge time on each of such applications. The second or third application will obviously be filed beyond the time provided in Section 17 (1 ). As the Court has power to extend the time on each such application it is clear that the word "shall" used in sub-section (2b) of Section 17 means "may. ". (Emphasis supplied)15. If the submissions of Mr. Mukherjee were to be accepted then it would lead to absurd results. As the Court has power to extend the time on each such application it is clear that the word "shall" used in sub-section (2b) of Section 17 means "may. ". (Emphasis supplied)15. If the submissions of Mr. Mukherjee were to be accepted then it would lead to absurd results. This can best be illustrated by way of examples. If an application had been made by a tenant for extension of time to make deposit beyond time and even if the defence had been struck off, under Section 17a the tenant could make another application within a period of 30 days and on such an application the order striking off the defence "shall" be set aside by the Court. Similarly even though a decree may have been passed after the defence was struck off, the Court could under Section 17b set aside the decree. But if an application for extension of time was pending on the date of Amendment Act came into force, then neither Section 17a nor Section 17b would apply and ori the arguments of Mr. Mukherjee the Court would be helpless to extend the time. The legislature could not have intended that Court must first strike out the defence and then under Section 17a set aside the order. A conjoint reading of sections 17 (2a) and (2b) along with Sections 17a to 17d shows that the Legislature Intended to give benefit to the tenants. To be noted that Section 17 (2b) and Sections 17a to 17d use the word. 'shall'. A conjoint reading of these sections makes it very clear that the word 'shall' used in all these Sections, necessarily means 'may'. A conjoint reading shows that a Court has power to extend time. Of course, the power would have to be Judicially exercised. We. therefore, confirm the view taken in Ghosh's case and in Khemka's case. " (Emphasis supplied) ( 7 ) THEREFORE, it is well settled that depending upon the purpose and circumstances under which the word 'shall' is used and depending upon the consequences that would follow, the word 'shall' could be used as 'may' and the word 'may' could be used as 'shall'. " (Emphasis supplied) ( 7 ) THEREFORE, it is well settled that depending upon the purpose and circumstances under which the word 'shall' is used and depending upon the consequences that would follow, the word 'shall' could be used as 'may' and the word 'may' could be used as 'shall'. In our view though sub-rule (2) of rule 7 of Order 27 provides that 'the Court shall extend the time for so long as it appears to it to be necessary' the said provision has to be considered as directory and not mandatory and it should be understood as the said provision conferring discretion on the Court either to extend the time sought for by defendant, who is a public officer, or not to extend the time. The Court has to make up its mind as to whether the time should be granted or not depending upon the circumstances pleaded for extension of time and keeping in mind whether the extension of time sought for is reasonable in the facts and circumstances of the case. While considering this question, the Court has to keep in mind the object of Rule 7 of order 27, which enables the defendant, who is a public officer in the suit, to seek for extension of time and the power conferred on the Court to extend the time. The said provision should be understood as indicating that generally the Court should consider the request favourably for extension of time unless the request made for extension of time is not justified and the same was made on untenable grounds with an intention to delay the disposal of the proceedings. If, in a given case, as noticed by us earlier, if the extension of time sought for filing the written statement is not justified and was intended either to delay the disposal of the proceedings, the public officer or the authorities who are in charge of the affairs of the State are totally negligent and oblivious of the case of the plaintiff, certainly the Court has the power to reject the prayer for extension of time for filing the written statement notwithstanding the fact that such a request is made by the public officer, who is a defendant. However, it is necessary to point out that while considering the request for extension of time, the Court has to keep in mind that the defendant is a officer of the state and the officer of the State cannot act like a private party and take an independent decision and on many occasions, the decisions will have to be taken in consultation with several departments or officers of the State. Therefore, while considering the request made by the defendant, who is an officer of the State, the Court has to independelty apply its mind keeping in mind that the amendment made to Order VIII Rule 1 of the CPC and also the observation made by the Supreme Court in the case of Kailash (supra), is to provide expeditious disposal of the suit filed and the defendant in the suit being an officer of the State would require little longer time than a private party. Each case has to be examined by the Court on the facts of each case. The discretion to be used by the Court, it is needless to point out, should be judicial discretion and must be exercised keeping in mind the object of rule 7 of Order XXVII of the CPC. The provisions contained in Rule 7 of Order XXVII of the CPC, in our view, must be understood as an exception to the provisions contained in Order VII Rule 1 of the CPC enabling the court to extend the time granted to file the written statement if the facts and the circumstances pleaded calls for grant of extension of time. Therefore, we are of the view that even if Order VIII Rule 1 of the CPC is not to be read as directory and it is to be understood as mandatory as laid down by this Court in the case of A. Sathyapal (supra), the Court has the power, where the defendant is public officer, to extend time prescribed for filing written statement under Order VIII Rule 1 of the Code of Civil procedure. Accordingly the reference is answered in the light of the discussion made above. ( 8 ) BEFORE parting with this order, we must place on record the assistance given to us by Sri Ashok Harnahalli, learned Advocate, who has appeared as amicus curiae on our request. Office is directed to send a copy of this Order to the Trial Court. Accordingly the reference is answered in the light of the discussion made above. ( 8 ) BEFORE parting with this order, we must place on record the assistance given to us by Sri Ashok Harnahalli, learned Advocate, who has appeared as amicus curiae on our request. Office is directed to send a copy of this Order to the Trial Court. Order accordingly. --- *** --- .