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2007 DIGILAW 3785 (MAD)

Fareeda Textiles v. Sha Jewantharaj Ashok Kumar

2007-11-23

M.VENUGOPAL

body2007
Judgment :- Heard the learned counsel for the petitioner/defendant in both the revision petitions. 2. The petitioner in both these revisions is the defendant in O.S.No.493/2003 on the file of VII Assistant Judge, City Civil Court, Chennai. The respondent herein is the plaintiff in the suit. 3. The respondent herein has laid a suit for recovery of Rs.1,51,636.86 with future interest from the revision petitioner/defendant in regard to the supply of textile goods. The suit was posted for filing written statement on 110. 2003 and no written statement was filed. 4. It is represented by the learned counsel for the revision petitioner that the case was not there in the cause list of the Court prepared and pasted in Court Hall of the trial Court and subsequently at the instance of respondent/plaintiffs counsel the bundle was taken up for hearing and at that point of time there was no representation on the side of the revision petitioner/defendant and the Trial Court was forced to pass orders setting the defendant as exparte on 110. 2003 for non-filing of written statement and the matter was posted for evidence on 210. 2003. The revision petitioner filed I.A.No.19257/2003 for setting aside the order dated 110. 2003 setting him exparte. It transpires that the respondent/plaintiff filed I.A.No.1964/2003 for attachment of immovable properties before judgment. The revision petitioner/defendant was also set exparte in that application for his failure to file counter and a direction was given to furnish security for the suit claim on or before 210. 2003. 5. The revision petitioner also filed I.A.No.19256/2003 to set aside that order also. In the affidavit in I.A.No.19256/2003 it is specifically averred by the deponent Mr.K.Lavan, learned counsel for the petitioner that the aforesaid I.A. was posted on 110. 2003 for filing counter finally and that the above suit was not entered in the cause list prepared and posted for hearing on 110. 2003 and therefore he was under the impression that after the Court calling work was over the matter could be brought to the notice of the Court and later he came back at 12.00 oclock to the lower Court and during the interregnum the said application was taken up and called and since there was no representation on the side of the defendant and also because of the fact that counter was not filed the revision petitioner/defendant was set exparte. 6. 6. It is significant to make a mentioning that in I.A.No.19257/2003 the learned counsel for the revision petitioner Mr.K.Lavan who has sworn the affidavit has reiterated the averments made by him in the affidavit filed in I.A.No.19256/2003 and therefore the same is not repeated. 7. The Managing partner of the revision petitioner/defendant in the suit has also filed an affidavit before the Trial Court in both the I.As., referred to above mentioning the fact that the suit was not entered in the cause list prepared and posted for hearing on 110. 2003. Suffice to point out that the additional affidavit filed by the Managing partner of the revision petitioner/defendant only points out that he was told that his presence was not required on 110. 2003 and that under the bonafide impression that his counsel will look after his case and file the written statement and therefore neither his absence nor his counsels absence on 110. 2003 was neither wilful nor wanton but due to the aforesaid reasons. 8. A common counter was filed by respondent/plaintiff in I.A.Nos.19256/2003 and 19257/2003 stating that the revision petitioner/defendant has invited the adverse orders passed on 110. 2003 by the trial Court on its own negligence and the plea that written statement was ready and the matter did not appear in the cause list are after thought etc; 9. The learned VII Assistant Judge, City Civil Court in his order in I.A.Nos.19256/2003 and 19257/2003 dated 30.3.2004 has interalia observed that "while exercising the power to receive written statement beyond the stipulated period the Courts should be very careful in exercising their judicial discretion. The learned VII Assistant Judge, City Civil Court in his order in I.A.Nos.19256/2003 and 19257/2003 dated 30.3.2004 has interalia observed that "while exercising the power to receive written statement beyond the stipulated period the Courts should be very careful in exercising their judicial discretion. If the Courts are allowed to exercise such a power liberally or without any basis, then it will be against the intention and the object of the legislature in bringing out the amendment and further the judicial discretion of the Courts has to be exercised sparingly on valid grounds and only if the Courts are satisfied that the defendant could not file the written statement for the reasons beyond his control and such defence is absolutely necessary to decide the issue and that the discretion should not be used with a view to give an opportunity to the defendant to defend his case though he was not able to satisfy the Court regarding the reasons for the delay and in the instant case the revision petitioner/defendant has not shown sufficient reasons not only for his failure to file written statement within 90 days but also within the extended time granted by this Court and similarly, no sufficient cause was shown for non-filing of counter in I.A.No.1964/2003 till 110. 2003 and resultantly, dismissed the two applications." 10. The averment that the case was omitted in the cause list prepared and pasted in the Court Hall was not specifically adverted to by the Court below in its common order dated 30.3.2004 passed in I.A.Nos.19256/2003 and 19257/2003. 11. In 2003 (3) CTC 385 (PONNAMMAL VS. 2003 and resultantly, dismissed the two applications." 10. The averment that the case was omitted in the cause list prepared and pasted in the Court Hall was not specifically adverted to by the Court below in its common order dated 30.3.2004 passed in I.A.Nos.19256/2003 and 19257/2003. 11. In 2003 (3) CTC 385 (PONNAMMAL VS. SUBBURAMAN AND ANOTHER) it is observed as follows: "Code of Civil Procedure, 1908, Order 8, Rules 1, 5(2), 9 and 10 (as amended by Central Act 96 of 1999 and 22 of 2002), Section 148 -Time limit fixed for filing written statement - Written statement to be presented within 30 days from the date of service of summons - Power given to Court to permit filing of written statement within 90 days from date of service of summons for reasons to be recorded on petition filed by Defendant Defendant loses his right to file written statement after 90 days and Court empowered to deliver judgment in suit - Provision of Order 8 is not mandatory -No amendment has been introduced by Legislature to provisions of Order 8, Rule 9 or Rule 10 - Rule 9 of Order 8 gives power to Court to call upon Defendant at any time to file written statement or additional written statement -Court can give only 30 days time for submission of written statement from date of Order -No specific time limit contemplated within which Order has to be passed - Court can before delivering judgment call upon Defendant to file written statement or additional written statement by giving 30 days time -Courts have power to permit Defendant to file written statement or additional written statement even in cases posted for judgment i.e. before pronouncing judgment on basis that Defendant did not file written statement -Court has to exercise its powers to receive additional statement to render justice and on satisfaction that valid and acceptable grounds have been made out by Defendant for not filing written statement within stipulated time - Such power is applicable to Section 148 of Code of Civil Procedure or to later part of Order 9, Rule 9 or part of Rule 10 -Receiving written statement beyond stipulated period is only exception -Normally written statement should be filed within time stipulated - Court should exercise its powers to receive written statement beyond specified period very carefully - Liberal exercise of such power would defeat the object of Legislature in bringing about the amendment to Code of Civil Procedure - Defendant has to establish that he could not file written statement for reasons beyond his control and written statement is necessary to decide controversy in suit - Court should not exercise its discretion only to give opportunity to Defendant to defend where he is not able to satisfy Court by adducing reasons for delay -On facts, refusal to exercise its discretion cannot be found fault with and Court declined to interfere with Order under Revisional Jurisdiction." 12. In 2006 (1) TNLJ (Civil) (SC) page 66 (SHAIKH SALIM HAJI ABDUL KHAYUMSAB V.KUMAR AND OTHERS) it is held that "the Order 8 Rule 1 C.P.C., provision does not deal with the power of the Court and also does not specifically take away the power of Court to take written statement on record though filed beyond the time as provided for and further that the said provision is procedural and it is not a part of substantive law and the object is to expedite hearing and not to scuttle the same." 13. Applying the principles as laid down in the aforesaid decision of the Honble Supreme Court and also bearing in mind of the fact that the suit O.S.No.493/2003 was not entered in the cause list of the VII Assistant Court prepared for the hearing on 110. 2003 and also satisfied with the reasons ascribed in the affidavits filed by both the learned counsel for the revision petitioner/defendant and Mohammed Rafee, Managing partner of the revision petitioner/defendant for their non-appearance before trial Court, this Court is of the considered view that the revisions need to be allowed in furtherance of substantial cause of justice, for the simple reason that the Courts are there to deliver substantial justice to parties and not to adopt a pedantic approach, when substantial justice and technical considerations are pitted against each other and cause of substantial justice deserves to be preferred and that judiciary is respected not on account of its power to legalise injustice on technical grounds because it is capable of removing injustice and is expected to do so. 14. In that view of the matter the Civil Revision Petitions are allowed. The orders dated 30.4.2004 passed in I.A.Nos.19256/2003 and 19257/2003 in O.S.No.493/2003 by the learned VII Assistant Judge, City Civil Court, Chennai are hereby set aside. No costs. 15. Since the suit is of the year 2003, the learned VII Assistant Judge, City Civil Court, Chennai is directed to dispose of the suit -O.S.No.493/2003 within three weeks from the date of receipt of the copy of this order.