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2005 DIGILAW 604 (PAT)

Mahendra Ram v. Ashok Kumar Singh

2005-07-17

S.N.HUSSAIN

body2005
Judgment S.N.Hussain, J. 1. I. A. No. 6308 of 2004 has been filed for condoning the delay in filing of this civil revision. From the statements made in the application it appears that sufficient grounds have been shown to condone the delay. Hence, the delay is condoned and the interlocutory application is allowed. 2. Petitioner is defendant in Title Suit No. 148 of 2000 which was filed by Opposite Party No. 1 for declaration of title and confirmation of possession of the plaintiff over the suit premises and also for declaration that Basgit Parcha granted in favour of Defendant First party by Defendant Second party was illegal, void and obtained by fraud and also for recovery of possession and for other ancillary reliefs. 3. The petitioner is aggrieved by order dated 17-8-2004 passed in the aforesaid suit by which the learned Munsif, Madhepura, rejected his petition for recalling the earlier order of that Court dated 19-7-2004 and refused to accept the written statement filed by the petitioner on 21-4-2003. 4. The short fact of this case is that the suit was filed in the year 2000 whereafter notices were sent to the defendants, out of whom the defendant petitioner received the notice on 3-5-2001 and appeared in the suit on 2-6-2001. Further contention of the defendant-petitioner counsel was that before defendants appearance in the suit the plaintiff had filed a petition under Order XXXIX Rules 1 and 2 of the Code of Civil procedure (hereinafter referred to as the Code for the sake of brevity) and after his appearance the defendant-petitioner was directed by the Court to file his show cause by 16-8-2001, whereafter the time was extended and the petitioner ultimately filed his show cause in the injunction matter on 27-9-2001. During the pendency of the aforesaid matter, the plaintiff again filed a petition under Order VI Rule 17 of the Code for amendment of the plaint, whereupon the defendant-petitioner was directed to file his reply. In the meantime, the plaintiff opposite party filed a petition on 20-11-2002 for appointment of Advocate commissioner for inspection of the suit property. The learned Counsel for the petitioner has further submitted that in the aforesaid circumstances the plaintiff kept the defendant-petitioner engaged in interlocutory matters due to which he could not file his written statement immediately after appearing in the suit. The learned Counsel for the petitioner has further submitted that in the aforesaid circumstances the plaintiff kept the defendant-petitioner engaged in interlocutory matters due to which he could not file his written statement immediately after appearing in the suit. However, when the said interlocutory matter came to rest the defendant petitioner filed his written statement a little later on 21-4-2003. However, when the matter came before the learned trial Court it refused to accept the said written statement vide order dated 19-7-2004. Thereafter, on 27-7-2004 the defendant-petitioner filed his petition for recall of the aforesaid order and also for accepting the written statement filed by him, but the learned Court below rejected his petition by the impugned order, which according to the learned Counsel for the petitioner, is illegal, arbitrary and perverse due to non-consideration of the facts and circumstances of the case as well as the provision of law applicable thereto. 5. On the other hand, learned Counsel for the plaintiff opposite party has contended that as per the provision of Order VIII Rule 1 of the Code, the Court had no jurisdiction to accept the written statement filed after lapse of 90 days from the date of service of notice by the defendant concerned. He has further averred that the said rule is a procedural provision and hence it will be effective in the suit instituted prior to coming into force of Amending Act of 2002. Hence, he has submitted that admittedly the defendant petitioner had received notice of the suit on 3-5-2001, but he did not file any written statement immediately after 1-7-2002 on which date the Code of Civil Procedure Amending Act of 2002 came into force and filed the written statement about ten months thereafter on 21-4-2003, which was much beyond the period of 90 days prescribed in law and hence the learned Court below had no jurisdiction to entertain the same. Learned Counsel for the plaintiff -opposite party has relied upon a decision of the Hon ble Apex Court in case of Dr. J. J. Merchant V/s. Shrinath Chaturvedi, reported in - and also on a Division Bench decision of the Karnataka High Court in case of A. Sathyapal etc. V/s. Smt. Yasmin Banu Ansari, and reported in AIR 2004 Karnataka, 246. 6. J. J. Merchant V/s. Shrinath Chaturvedi, reported in - and also on a Division Bench decision of the Karnataka High Court in case of A. Sathyapal etc. V/s. Smt. Yasmin Banu Ansari, and reported in AIR 2004 Karnataka, 246. 6. Learned Counsel for the opposite party has further contended that the provision of the Amending Acts of 1999 and 2002 specifically provided under Sec. 32(L) and sec. 15(L) respectively that only when a written statement is filed before coming into force of the aforesaid Amending Acts the said amended provisions will not be applicable, but here in the instant case the written statement has been filed much after coming into force of the aforesaid Act. He has further contended that the provision of sec. 27 and Order V Rule 1 as amended by the aforesaid Amending Acts had no concern with the provisions of Order VIII Rule 1 of the Code and hence even if they are not mandatory, it would affect the provision of Order VIII Rule 1 of the Code, which is clearly mandatory in nature as has been held in the aforesaid decisions. Hence, he has submitted that the impugned order of the learned Court below is quite legal and justified and needs no interference. 7. After hearing learned Counsel for the parties and after perusing the materials on record, it is quite apparent that the defendant-petitioner received summons/ notices of the suit on 3-5-2001 and thereafter appeared in the suit on 2-6-2001, but he filed his written statement on 21-4-2003. Both the Amending Acts of 1999 and of 2002 came into force in the meantime on 1-7-2002. Hence, earlier when the defendant received summons or appeared in the suit, the written statement was to be filed at or first hearing of the suit or within such time as the Court may permit as per the unamended provision of Order VIII Rule 1 of the Code. After the said amendments which came into force on 1-7-2002 the said provision of Order VIII Rule 1 of the Code was substituted by a new provision providing that the defendant shall within 30 days from the date of service of summons on him present a written statement of his defence and in any circumstances shall not be later than 90 days from that date. Hence, according to the well established principle of law, the written statement was to be filed within 90 days not from the date of receipt of summons as it was much prior to the date of coming into force of the Amending Act, but from the date the amended provision came into force. Accordingly, in such cases where the suits were filed and summons were served prior to 1-7-2002 i.e. the date on which the amended provision of Order VIII Rule 1 of the Code came into force, the period of 90 days shall be counted from the said date i.e. 1-7-2002 and not from the date when the summons were served upon the defendants, as at that time the defendant cannot be legally expected to comply the provision of law which had not yet been enforced. 8. However, the contention of the learned Counsel for the defendant-petitioner is that the suit having been filed prior to 1 -7-2002, the date on which the amended provision of Order VIII Rule 1 of the Code came into force, the case would be governed by the provision of Order VIII Rule 1 of the Code as it stood before the said amendments of 1999 and 2002 and the defendant petitioner was at liberty to file his written statement at or before the first hearing of the suit. In my view, the contention of the learned Counsel for the defendant petitioner cannot be held to be legal and proper as the law makers have felt the need of cutting short enormous delays at various levels of the suit at the hands of the unscrupulous litigants and for removing the hardship caused to other parties due to such dilatory attitude and also for speedy disposal of the suits in consonance with fair play and justice and hence the said provision cannot be confined to the suits filed later, leaving the suits filed prior to the coming into force of the said amendments to linger unnecessarily at the mercy of such litigants much to the chagrin of the parties suffering due to such dilatory tactics. Furthermore, the aforesaid amendment in Code is with respect to the procedural law, hence after coming into force it has to be made uniformly applicable to all the suits and it cannot be legally mandated that suits of one period will be governed by one set of procedure, whereas suits of similar nature but of another period will be governed by a different set of procedures. 9. But in the instant case even if the period of 90 days is counted from the date of coming into force of the Amending Act i.e. 1-7-2002, the written statement was filed belatedly after about ten months on 21-4-2003. The explanation given by the defendant-petitioner in that regard is that the plaintiff had filed several petitions before and after 2-6-2001, the date on which the defendant appeared in the suit, and immediately after his appearance he was directed by the Court to file his show cause and in this way the plaintiff kept the defendant-petitioner engaged in interlocutory matters such as injunction, amendment and appointment of Advocate Commissioner due to which he could not file his written statement within the time prescribed. It may be further noted that the provision of Order VIII Rule 1 of the Code as it stood on the date the defendant-petitioner appeared in the suit did not provide that the written statement was to be filed within 30 or 90 days of the receipt of the summons of the suit and hence the defendant-Petitioner was under the genuine impression that he had to file the written statement before the commencement of first hearing of the suit and this impression continued till the written statement of the defendant petitioner was rejected by the trial Court on 19-7-2004. Hence, in my view, the defendant-petitioner had genuine and valid reasons and explanations for the delay in the filing of the written statement beyond the period of 90 days. 10. It is also apparent from the record that on 21 -4-2003 the defendant petitioner had filed his written statement whereafter the hearing of the suit started on 19-4-2004 and till that date the written statement of the defendant-petitioner was not rejected and hence there was no occasion for the Court below to reject the said written statement while the hearing of the suit was going on 19-7-2004. Furthermore, the learned court below has passed its impugned order on the basis of two decisions; one of the Hon ble Andhra Pradesh High Court in case of Machipeddi Ramaswamy V/s. Buchi Reddy reported in AIR 2003 Andh Pra 446 and the other of Hon ble Karnataka High Court in case of A. Sathyapal V/s. Smt. Yasmin Banu Ansari and reported in AIR 2004 Karnataka 246. 11. So far the said decisions are concerned, they are based upon a decision of the Hon ble Apex Court in case of Dr. J. J. Merchant V/s. Shrinath Chowdhary reported in -, which was only with regard to the provisions of Consumer Protection Act, 1986 and in which only a passing reference to the provision of Order VIII Rule 1 of the Code was made. These cases and matters have already been fully considered and dealt with by the Hon ble Apex Court in case of Kailash V/s. Nanku reported in - and also by the Patna High Court in case of Smt. Sunita Devi V/s. Abdhesh Kumar Sinha alias Kamleshwari Pd. Sinha reported in - in which it was held that the amended provision of Order VIII Rule 1 of the Code has to be construed as directory and not mandatory as it is a procedural law meant for expediting the hearing and not for scuttling it. 12. In view of the said decisions of the Patna High Court and also the decisions of the Hon ble Supreme Court considering all the earlier decisions of the other High Courts and of the Apex Court, there is no occasion for the Courts of this State to rely upon the decisions of the other High Courts which are contrary to the well established principles laid down by the Hon ble Supreme Court. Hence, the impugned order of the learned Court below, being not in consonance with the said principles and rulings, is hereby set aside. 13. In the facts and circumstances mentioned above, this Court is satisfied that the reasons assigned by the defendant-petitioner in support of his contention for extension of time for filing the written statement are valid and good and the Court had denied the same only on the wrong assumption that it had no power to do so. The written statement having already been filed in the Court below, it is directed to be taken on record. The written statement having already been filed in the Court below, it is directed to be taken on record. But the same would be subject to payment of costs of Rs. 4,000.00 (Rupees four thousand) by the defendant to the plaintiff through his counsel in the Court below within four weeks from today. This revision is, accordingly, allowed.