Research › Search › Judgment

Rajasthan High Court · body

2006 DIGILAW 877 (RAJ)

RUPA RAM v. RAJMAL

2006-03-20

DINESH MAHESHWARI

body2006
Judgment DINESH MAHCSHWARI, J. ( 1 ) THE petitioner, defendant in a suit for recovery of rs. 23,000/- as damages filed by the Respondent no. 1, has submitted this writ petition against the order dated 30-05-2005 passed by the learned trial Court refusing to take his written statement on record. ( 2 ) BRIEF facts relevant for determination of the questions involved in this writ petition are that the suit has been filed by the Respondent no. 1 on 13-09-2004 for recovery of Rs. 23. 000/- as damages from the petitioner-defendant with the submissions that the house of the defendant was situated on the southern side of the house of the plaintiff; that the defendant filed a suit for declaration and perpetual injunction on 05-03-1998 asserting his ownership rights over a land of public chowk; that the said suit was dismissed by the trial Court after evidence; and that an appeal filed by the defendant was also dismissed on 14-11-2003 by the Additional District Judge, Bheenmal. The plaintiff has asserted that he has suffered serious mental agony and has also suffered financial losses for pairvi of such a baseless cation and has claimed damages of rs. 23,000/- from the petitioner-defendant. The order-sheets annexure-3 show that appearance was put on behalf of the defendant on 05-10-2004 before the trial Court and the case was adjourned to 11-11-2004; it was taken up on 16-11-2004 and again time was granted for ming of written statement and the case was adjourned to 11-12-2004. ( 3 ) ON 11-12-2004, the case was simply adjourned to 18-02-2005 while recording that the Presiding Officer had been transferred; and on the next date again it was recorded that the new Presiding Officer had not been posted and the case was adjourned to 10-03-2005. ( 4 ) ON 10-03-2005 it was recorded that the Headquarter of the Presiding Officer was at Bheenmal on that date and, therefore, the case was adjourned to 30-05-2005. On this date of 30-05-2005, the defendant filed his written statement. The learned trial Court refused to take the written statement on record while observing that the written statement had not been filed within 90 days as required by the Code of Civil Procedure and the Counsel for the plaintiff has also raised objection. On this date of 30-05-2005, the defendant filed his written statement. The learned trial Court refused to take the written statement on record while observing that the written statement had not been filed within 90 days as required by the Code of Civil Procedure and the Counsel for the plaintiff has also raised objection. The entire order dated 30-05-2005 reads thus - ( 5 ) ASSAILING the order aforesaid, it has been contended on behalf of the petitioner that the written statement had in fact been prepared and signed by the defendant on 07-12-2004 but was not produced by the Counsel appearing for the petitioner-defendant before the trial court particularly because of the learned Presiding officer being not available. In any case, it was the mistake of the Counsel for which the petitioner ought not to be penalised and the learned trial Court ought to have taken the written statement on record in the interest of justice. Learned Counsel has also pointed out the rejoinder submissions made before this court supported by an affidavit of the Counsel conducting the case before the trial Court who has stated that the written statement was got prepared on 07-12-2004 in his chambers and the defendant had put his signatures thereupon and that he (the Counsel) omitted to file the written statement within 90 days because of the Presiding Officer being not available and the written statement was filed on 30-05-2005. ( 6 ) PER Contra, the order impugned has been supported and this petition has been strenuously opposed by the learned Counsel appearing for the plaintiff-respondent No. 1 with the submissions that no application was moved by the petitioner before the trial Court for taking written statement on record and no reasons were assigned in writing for not filing of the written statement in time and not even a oral prayer was made by the Counsel giving out the reasons for inordinate delay. While relying heavily on the observations made by the Honble Supreme Court in Paragraphs 41 and 42 of the judgment in the case of Kailash v. Nanhku and Ors. , learned Counsel emphasised that the written statement cannot be taken on record for want of a written application. Learned Counsel in the last alternative submitted that if at all the written statement is permitted to be taken on record, the same ought to be on heavy costs. , learned Counsel emphasised that the written statement cannot be taken on record for want of a written application. Learned Counsel in the last alternative submitted that if at all the written statement is permitted to be taken on record, the same ought to be on heavy costs. ( 7 ) HAVING given a thoughtful consideration to the rival submissions and having examined the material produced on record, this court is unable to countenance the approach of the learned trial Court and so also the hyper technical submissions made on behalf of the plaintiff-respondent No. 1 so as to refuse taking of the written statement on record. ( 8 ) IT is not in dispute that the petitioner has put in appearance on 05-10-2004 and the matter was taken up on 16-11-2004 and was adjourned to 11-12-2004 for filing of written statement. Although the date of service of summons has not come on record but it appears that the summons were issued on 18-09-2004 and by all standards, it is apparent that the date of 11-12-2004 fixed for filing of written statement was falling within 90 days of service of summons. The fact remains that on successive dates of 11-12-2004, 18-02-2005 and 10-03-2005, the Presiding Officer was not available in the Court for the reasons respectively of transfer, new incumbent having not been posted and for Presiding Officer being away to Headquarter, Bheenmal. The fact further remains that the written statement was filed on 30-05-2005. it is true that no specific application was moved for taking the written statement, on record, however, the Counsel representing the defendant-petitioner in the trial Court has submitted an affidavit in support of rejoinder submissions before this Court specifically admitting that the written statement was signed by the defendant on 07-12-2004 and he had omitted to file the same within 90 days because of the Presiding Officer being not available and had filed the same on 30-05-2005. This Court is clearly of opinion that when the Counsel representing the petitioner has been candid enough to admit his mistake and has submitted an affidavit in support of the factual aspect of the matter that the written statement was in fact signed by the defendant on 07-12-2004, such statement deserves due credence; and there is no reason to disbelieve the statement on oath made by the lawyer. ( 9 ) FROM the plaint averments, it appears that there had been previous litigation between the parties and the present suit has been filed claiming damages for the earlier litigation allegedly foisted upon the plaintiff by the defendant. There appears to be no reason for the defendant to have not taken up filing of written statement to such a plaint and in fact the written statement averments (Annexure-2)show that the defendant has not denied the fact of earlier litigation and has only alleged that the suit was decided against him on technical grounds; and that the Court has not awarded any costs therein and, therefore, a separate suit for damages was not competent. There is no such aspect of the matter for which the defendant would be interested in protracting the trial of the suit. ( 10 ) LEARNED Counsel for the respondent has vehemently contended that a prayer for taking written statement on record when filed beyond 90 days has to be by way of an application in writing and has relied upon the following observations of the Honble Supreme court in the case of Kailash (Supra):-"42. A prayer seeking time beyond 90 days for filing the written statement ought to be made in writing. In its judicial discretion exercised on well-settled parameters, the Court may indeed put the defendants on terms including im-position of compensatory costs and may also insist on affidavit, medical certificate or other documentary evidence (depending on the facts and circumstances of a given case) being annexed with the application seeking extension of time so as to convince the Court that the prayer was founded on grounds which do exist. " ( 11 ) HOWEVER, the Honble Supreme Court in the same decision has also pointed out that the extension of time could be only by way of exception and for reasons to be recorded in writing even in brief; and in no case the defendant should be permitted to seek extension when the Court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his Counsel. The Honble Supreme court has observed in Paragraphs 43 and 44 in the same decision thus,-"43. The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the Court. The Honble Supreme court has observed in Paragraphs 43 and 44 in the same decision thus,-"43. The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the Court. In no case the defendant shall be permitted to seek extension of time when the Court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel. The Court may impose costs for dual purpose: (i) to deter the defendant from seeking any extension of time just for asking and (ii) to compensate the plaintiff for the delay and inconvenience caused to him:44. However, no stait-jacket formula can be laid down except that the observance of time schedule contemplated by Order viii, Rule 1 shall be the rule and departure therefrom any exception, made for satisfactory reasons only. We hold that Order VIII, Rule 1, though couched in mandatory form, is directory being a provision in the domain of processual law. " ( 12 ) THE Honble Supreme Court in the later decision in the case of Salem Advocate bar Association, Tamil Nadu v. Union of india, after considering various provisions of the Code of Civil Procedure particularly with reference to the Amendment Acts, 1999 and 2002 has been pleased to lay down various principles and in relation to the provisions of order 8, Rule 1 of the Code of Civil Procedure, has been pleased to observe that the rule in question is to advance the cause of justice and not to defeat it. Construction of rules of procedure which promotes justice and prevents miscarriage has to be preferred. The Honble supreme Court has been pleased to hold thus,-". . . . In construing the provision of Order viii, Rule 1 and Rule 10 the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the Court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII, Rule 1. There is no restriction in Order VIII, Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to make such order in relation to the suit as it thinks fit. There is no restriction in Order VIII, Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to make such order in relation to the suit as it thinks fit. Clearly, therefore, the provision of Order VIII, rule 1 providing for upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by order VIII, Rule 1. " ( 13 ) WHEN the time limit provided in Order 8, Rule 1 of the Code of Civil Procedure is taken to be directory, it is apparent at once that denial of written statement on mere mathematical calculation of 90 days is not envisaged by the legislature. ( 14 ) HAVING examined the overall facts and circumstances of the case, and applying the principles enunciated by the Apex Court, this court is satisfied that the petitioner cannot be held guilty of any laxity or gross negligence or any improper conduct. It appears that the counsel has omitted to take reasonable care to adhere to the time limit provided by the rules of procedure and this being simply a case of bona fide default of the Counsel, when the discretion rests with the Court to enlarge the time, this Court is of opinion that denying the written statement on simple calculation of number of days would not serve the cause of justice. ( 15 ) IT is to be imbibed that rules of procedure are intended to subserve the cause of justice and in the trial of civil suits the procedure is adopted by the Court concerned so as to advance the cause of justice providing fair opportunity of presenting their case to all the parties. The Court has inherent power to do real and substantial justice for which it exists and it is always preferred to decide an issue on merits instead of driving out a party from the court on technicalities. The Court has inherent power to do real and substantial justice for which it exists and it is always preferred to decide an issue on merits instead of driving out a party from the court on technicalities. ( 16 ) HAVING regard to the facts and circumstances of the case, the order dated 30-05-2005 cannot be sustained and deserves to be set aside and the written statement deserves to be taken on record. Ordinarily this Court would have compensated the plaintiff with some reasonable costs for the delay caused because of the defendant not putting up the written statement in time, however, the submissions made on behalf of the plaintiff and the subject matter of suit make it apparent that the plaintiff prefers to rely more on technicalities rather than substance and seeks to take advantage of a mistake committed by the Counsel for the defendant. The prayer in the last alternative to impose costs also seems to have been made by the plaintiff only to take advan-tage of technicalities and this Court is clearly of opinion that the rules of procedure are not meant to be used as tools by any litigant to take advantage of technicalities simpliciter and the other party to the litigation cannot be penalised for the mistake of the Counsel; that too when the mistake seems to have occurred for bona fide reasons. Having regard to the overall circumstances of the case, this Court is of opinion that in this case the written statement ought to be taken on record without imposing any costs on the defendant-petitioner. ( 17 ) AS a result of the aforesaid, this writ petition is allowed, the impugned order dated 30-05-2005 is set aside and the written statement already filed by the petitioner is permitted to be taken on record. There shall be no order as to costs of this writ petition. Writ Petition is allowed.