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2006 DIGILAW 2105 (ALL)

TRIYUGI NATH v. ADDL. DISTRICT JUDGE, ALLAHABAD

2006-08-28

TARUN AGARWALA

body2006
JUDGMENT Hon’ble Tarun Agarwala, J.—A suit for eviction and for arrears of damages was filed. The summons was served upon the defendant on 12-7-2004. The written statement was to be filed by 12-10-2004, i.e, within 90 days from the date of the service of the summons. The defendant did not file the written statement within the said period. On 21-10-2004, an adjournment application was moved by the defendant praying for an adjournment on the ground that his Counsel was suffering from a viral fever. The Court by an order dated 28-10-2004 rejected the application of the defendant and directed that the case to proceed ex parte, since the defendant had not filed a written statement. An application for recall of this order was filed by the defendant alleging that the written statement was ready, but could not be filed, as his Counsel was unwell, and therefore, prayed that the order be recalled and the defendant be permitted to file the written statement. The Court below, after hearing the parties, allowed the recall application and recalled its order dated 21-10-2004 and permitted the defendant to appear and contest the matter, but debarred the defendant from filing his written statement. A second application was filed by the defendant again praying that the defendant should be permitted to file the written statement, as there was only a small delay and that there was no intention on his part to delay the proceedings. This application was rejected by an order dated 13-7-2006 on the ground that no written statement could be permitted to be filed after the expiry of 90 days. Consequently, the writ petition. 2. Heard Sri Ashish Srivastava, the learned Counsel for the petitioner and Sri B.B. Paul, the learned Counsel for the respondent. 3. The learned Counsel for the respondent submitted that the order dated 4-2-2005 had become final and that no review application nor a revision was filed against the said order, and therefore, the said order could not be set aside in the present proceedings under Article 227 of the Constitution of India. The learned Counsel for the respondents submitted that the petitioner had an alternative remedy against the order dated 13,7.2006 by filing a revision under Section 115 of the Code of Civil Procedure. 4. The learned Counsel for the respondents submitted that the petitioner had an alternative remedy against the order dated 13,7.2006 by filing a revision under Section 115 of the Code of Civil Procedure. 4. The learned Counsel for the respondent further submitted that in view of the provision of Order 8 Rule 1 of the C.P.C., no written statement could be filed after 90 days, inasmuch as, the said provision is mandatory in nature and that time could not be extended beyond 90 days for the purpose of filing the written statement. 5. In the opinion of the Court, the submission made by the learned Counsel for the respondents is bereft of merit. 6. In the opinion of the Court, this is a fit case where the Court should exercise its power under Article 227 of the Constitution, rather than delegating the petitioner to a remedy of filing a revision. Substantial justice is required to be done rather than take a technical approach in the matter. The Supreme Court in the case of State of Nagaland v. Lipok AO and others, JT 2005(4) SC 10 held “When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay” 7. The said principle of law as enunciated by the Supreme Court is squarely applicable in the present case. 8. Order 8, Rule 1 of the Code of Civil Procedure as amended by the Act No. 22 of 2002 w.e.f. 1-7-2002 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.” 9. The aforesaid provision has been interpreted by the Supreme Court in various judgments. The aforesaid provision has been interpreted by the Supreme Court in various judgments. In Kailash v. Nanhku & Ors, 2005 (4) SCC 480 , the Supreme Court held that the nature of the provision contained in Order 8 Rule 1 is procedural and is not a part of the substantial law unless compelled by express and specific language of the statute. The provisions of CPC 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 held : “Considering the object and purpose behind enacting Rule 1 of Order 8 in the present form and the context in which the provision is placed, we are of the opinion that the provision has to be construed as directory and not mandatory. In exceptional situations, the Court may extend the time for filing the written statement though the period of 30 days and 90 days, referred to in the provision, has expired.” 10. In Rani Kusum (Smt.) v. Kanchan Devi (Smt) & Ors, 2005 (6) SCC 705 , the Supreme Court held as under : “Order 8 Rule 1 of 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 falling within 90 days. The provision does not deal with the power of the Court and also does not specifically take away 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 Order 8 Rule 1 is procedural. It is not a part of the substantive law. It is also to be noted that though the power of the Court under the proviso appended to Rule 1 Order 8 is circumscribed by the words “shall not be later that ninety days” but the consequences flowing from non-extension of time are not specifically provided for though they may be read in by necessary implication. Merely because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. Merely because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The Courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be director though worded in the negative form.” 11. In Shaikh Salim Haji Abdul Khayumsab v. Kumar & Ors, AIR 2006 SC 396 , the Supreme Court again held that even though the provision of Order 8, Rule 1, C.P.C. is couched in a negative language, the said provision is directory in nature and that the Court has the inherent power to extend the time in filing the written statement for reasons to be recorded. 12. In the present case, the Court proceeded ex parte inspite of an adjournment application being filed by the defendant. The said order to proceed ex parte was recalled because the Court found that the Counsel for the defendant was ill. It has come on record that the written statement was ready, but could not be filed on account of the fact that the defendant’s Counsel had fallen ill. Therefore, in the opinion of the Court, a liberal approach should have been adopted by the Court below in permitting the defendant to file the written statement. Admittedly, the delay in filing the written statement was only 15 days. Since the trial Court had allowed the defendant to contest the matter on merit, the Court ought to have allowed the defendant to file the written statement. The trial Court committed an error in rejecting the application of the defendant seeking permission to file the written statement. 13. For the reasons stated aforesaid, the writ petition is allowed. The orders dated 4-2-2005 and 13-7-2006 are set aside. The written statement filed by the petitioner-defendant shall be taken on record subject to the payment of cost of Rs. 2,000, which shall be deposited by the petitioner within three weeks from the date of the production of a certified copy of the order. The said amount shall be withdrawn by the plaintiff 14. It is further directed that the suit shall be decided by the trial Court within a period of six months. Petition Allowed. ———