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2006 DIGILAW 595 (KER)

Sanadhanan Nair v. Cochin Kagaz Ltd.

2006-09-13

K.A.ABDUL GAFOOR

body2006
Judgment :- The petitioner is the defendant in O.S. No.523/2003 on the file of the Munsiff’s Court, Aluva. He was issued with a summons for appearance in that Court on 7-4-2004. On 4-2-2004, he entered appearance and filed vakalath. On 6-4-2004, he filed I.A. No.676/04 seeking time for filing written statement. But on 7-4-2004, the Court rejected the prayer and set him ex parte and adjourned the case for evidence of the plaintiff to 18-5-2004. On 15-5-2004, the defendant filed Ext.P-2 written statement along with two petitions; I.A. No.717/04 for setting aside the ex parte order and I.A. No. 718/04 for accepting the written statement. Though the ex parte order was set aside, as per Ext. P-4, I.A. No.718/04 was dismissed as per Ext.P-5 which reads as follows: “Petition dismissed as court has no power to receive written statement after the period of 90 days under Order VIII, Rule (1) of C.P.C.” Ext. P-5 is under challenge in this writ petition. There is no appearance for the respondent. 2. It is contended by the petitioner that the court below has not considered the prayer for accepting written statement, in a proper manner. The decision of the Apex Court reported in Shaikh Salim Haji Abdul Khayumsab v. Kumar (2006 (1) K.L.J. 223), is relied on. 3. It reads: “The text of Order VIII, Rule 1, as it stands now, 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. Order VIII, 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 failing 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. 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 VIII, Rule 1 intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases, causing inconvenience to the plaintiffs and the petitioners approaching the court for quick relief and also 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.” 4. In Kailash v. Nanhku (2005 (2) K.L.T. 623), the Supreme Court held that the time frame provided in Order VIII, Rule 1 of C.P.C was only procedural and directory and not mandatory and therefore, ought to have been extended. 5. A reading of Ext.P-5 discloses that the prayer, contained therein to accept the written statement, was not considered by the court below in a legal manner. Actually, the court was bound to consider the said prayer. Though the ex parte order was set aside as per Ext.P-4 order, the petition for accepting the written statement is seen rejected as per Ext.P-5, as beyond the time frame statutorily provided in Order VIII, Rule 1 C.P.C. Considering the impact of the time frame mentioned in Order VIII, Rule 1 C.P.C., the Supreme Court has in Kailash’s case (cited supra) held that: “the purpose of providing the time schedule for filing the written statement under O.VIII, R.1 of C.P.C. is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extent the time. Though the language of the proviso to R.1 of O.VIII of the C.P.C. 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. Though the language of the proviso to R.1 of O.VIII of the C.P.C. 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 O.VIII, R.1 of the C.P.C. is not completely taken away.” Necessarily, on the basis of the aforesaid dictum, Ext.P-5 cannot be found to be sustainable and hence it is set aside. Accordingly, writ petition is disposed of setting aside Ext.P-5. The Munsiff’s Court, Aluva is directed to consider Ext.P-3 application afresh, taking into account the aforesaid dictum.