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2006 DIGILAW 3058 (MAD)

K. K. Ramasubramania Raj v. A. Muthukrishnan

2006-11-10

K.VENKATARAMAN

body2006
Judgment :- The present Civil Revision Petition is directed against the order of the learned Principal District Judge, Virudhunagar District at Srivilliputtur dated 13.10.2005 made in I.A.No.58 of 2005 in O.S.No.159 of 2004. 2. The petitioner has filed the suit against the respondents in O.S.No.159 of 2004 on the file of the Principal District Judge, Virudhunagar at Srivilliputtur claiming a sum of Rs.37,50,833/- and to pay subsequent interest for Rs.35,00,000/- at the rate of 12% per annum till the date of decree and to pay an interest at the rate of 12% interest from the date of decree till the date of payment and for costs. In the said suit, the learned Principal District Judge, Virudhunagar District at Srivilliputtur seems to have adjourned the matter on several occasions for filing written statement by the respondents herein, who are the defendants in the said suit. 3. While so, the petitioner seems to have filed I.A.No.58 of 2005 under Order 8 Rules 1 and 10 C.P.C. to pronounce judgment and decree on the ground that the respondents/defendants have not filed the written statement within 90 days, which is mandatory as per the provisions of the Civil Procedure Code. The respondents have filed counter to the said application stating that the Court below has already received the written statement and hence the application has to be dismissed in limine. The Court below dismissed the said application and the present revision is directed against the said order. 4. Mr.K.V.Subramanian, learned senior counsel appearing for the petitioner, has vehemently contended that the respondents, who are the defendants in the said suit, have received the suit summons on 11.6.2004. They appeared before the Court below on 9.7.2004 and prayed for time for filing their written statement and the case was posted to 10.8.2004 for filing written statement. As per the amended Civil Procedure Code, which came into effect on 1.7.2002, the respondents have to file their written statement within 30 days from the date of receipt of the summons, namely, on or before 11.7.2004. The suit was adjourned to 10.8.2004, 10.9.2004, 11.10.2004, 17.11.2004, 17.12.2004, 17.1.2005 and 24.1.2005 and 28.2.2005. Thus, according to the learned senior counsel for the petitioner, the Court below has extended time for filing written statement periodically without assigning any reason. The suit was adjourned to 10.8.2004, 10.9.2004, 11.10.2004, 17.11.2004, 17.12.2004, 17.1.2005 and 24.1.2005 and 28.2.2005. Thus, according to the learned senior counsel for the petitioner, the Court below has extended time for filing written statement periodically without assigning any reason. The learned senior counsel has further submitted that the provision of law relating to the presentation of written statement is mandatory and the Court below has no power or authority to extend the time beyond 90 days, the outer limit to permit the respondents to present their written statement. Hence, according to the learned senior counsel for the petitioner, the Court below should have pronounced judgment and decree as prayed for in the suit for non filing of the written statement. 5. Mr.J.Bharathan, learned counsel appearing for the respondents, has contended that though the written statement has to be filed within the time prescribed under the provisions of the Civil Procedure Code, the Court below where the suit is pending may grant time for filing written statement. The learned counsel has further submitted that the Court below has got power to receive written statement even after expiry of 90 days. 6. I have heard Mr.K.V.Subramanian, learned senior counsel appearing for the petitioner and Mr.J.Bharathan, learned counsel appearing for the respondents. 7. It is true that the Court below has granted number of adjournments for filing written statement by the respondents. It is also true that after filing the application by the petitioner under Order 8 Rules 1 and 10 C.P.C. praying the Court below to pronounce judgment and decree, the respondents have filed the written statement. 8. But, the fact remains that the written statement has been filed by the respondents herein before the application filed by the petitioner referred to above has been disposed of. When the written statement has been filed by the respondents before the application could be disposed of, it is, but natural for the Court below to dismiss the said application holding that the written statement has already been received and hence, the application filed by the petitioner has become infructuous. 9. Furthermore, the Court below has held that even though upper limit has been prescribed under the Code, the Court has power to extend time beyond 90 days as prescribed under the Civil Procedure Code. 9. Furthermore, the Court below has held that even though upper limit has been prescribed under the Code, the Court has power to extend time beyond 90 days as prescribed under the Civil Procedure Code. In this connection, the judgment reported in PONNAMMAL v. SUBBURAMAN ( 2003 (3) M.L.J. 191 ) is relevant for the purpose that the Court below has got power to extend time for filing written statement after expiry of 90 days. In the said judgment, this Court held as under:- "Under Order 8 Rules 9 and 10 of the Code, it cannot be said that the Courts have no power to permit the defendant to file written statement even in cases posted for judgment. The provisions give power to the Courts to receive written statement before pronouncing judgment in cases posted for judgment on the basis that the defendant did not file written statement." The above said decision will clearly show that before pronouncing judgment, written statement can be received. 10. In KAILASH v. NANHKU ( 2005 (4) S.C.C. 480 ), the Apex Court has held as under:- "Our attention has also been invited to a few other provisions such as Rules 9 and 10 of Order 8. In spite of the time-limit appointed by Rule 1 having expired, the court is not powerless to permit a written statement being filed if the court may require such written statement. Under Rule 10, the court need not necessarily pronounce judgment against the defendant who failed to file written statement as required by Rule 1 or Rule 9. The court may still make such other order in relation to the suit as it thinks fit." In the same decision, the Apex Court has held that in no case, the defendant can be permitted to seek extension of time when the court has satisfied that it was a case of laxity or gross negligence on the part of the defendant or his counsel. By emphasising the said passage, Mr.K.V.Subramanian, learned senior counsel, has stressed the point that in the case on hand, the Court below has mechanically adjourned the matter for filing written statement and hence, the order of the Court below has to be set aside. 11. By emphasising the said passage, Mr.K.V.Subramanian, learned senior counsel, has stressed the point that in the case on hand, the Court below has mechanically adjourned the matter for filing written statement and hence, the order of the Court below has to be set aside. 11. It will be useful to refer to another judgment of the Apex Court reported in RANI KUSUM v. KANCHAN DEVI (2005 (4) C.T.C. 809) wherein Their Lordships have held as follows:- "Order 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 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 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. Substituted Order 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. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice." Thus, the above Rulings will clearly establish that the provisions in the Civil Procedure Code are only procedural and not part of substantive law. Further, the said Rulings will clearly establish that the Courts have got power to extend time for filing written statement. 12. The code is not exhaustive as the legislature is incapable of contemplating all possible circumstances which may arise in future litigation and consequently, for providing procedure for them. Further, the procedure contemplated under the Code is designed to facilitate justice and further ends, not the penal enactment for punishment and penalties and not a thing designed to trip the people up. Further, the procedure contemplated under the Code is designed to facilitate justice and further ends, not the penal enactment for punishment and penalties and not a thing designed to trip the people up. Further, the provisions under the Code are grounded on the principle of natural justice. The object of the amendment is only to have speedy disposal of the suits by providing a time frame to file written statement. The said amendment is only a procedure and not vitiated by any penalty or serious or trivial consequences, if the written statement is not filed within 90 days from the date of receipt of the summons. The power of the Court to render judgment under the said provision is not automatic in the event of failure in filing written statement on the part of the defendant. Merely because the defendant did not file written statement, it does not create any substantive right on the plaintiff to get the judgment in his favour irrespective of the merits in his case, as the Court is to give judgment on merits of the plaintiffs case. It is also not the object of the Code to prevent any person from exercising his right to defend his case effectively. 13. In the present case on hand, though the Court below has granted number of adjournments for filing written statement, the written statement has been received by the Court below before the application filed by the petitioner could be disposed of. Thus, the court below, before deciding the said application, has received the written statement and hence, the Court below has no other option, but to dismiss the application filed by the petitioner. Further, the order of the Court below cannot be said to be erroneous and without jurisdiction. 14. In the result, the order of the learned Principal District Judge, Virudhunagar District at Srivilliputtur dated 13.10.2005 made in I.A.No.58 of 2005 in O.S.No.159 of 2004 is hereby confirmed and the Civil Revision Petition stands dismissed. Consequently, C.M.P.No.2266 of 2006 is closed. However, in view of the delay in filing the written statement, the respondents are directed to pay costs of Rs.5,000/- to the petitioner which shall be payable within a period two weeks from this date.