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2007 DIGILAW 415 (PAT)

Satyanarayan Singh v. Ramnath Singh

2007-02-23

RAMESH KUMAR DATTA

body2007
Judgment 1. Heard learned counsel for the petitioner. Learned counsel for the opposite party, who had earlier addressed the argument on the previous occasion, is not present in court today. 2. The petitioner has come to this court against the order dated 27.12.2005 passed by the Subordinate Judge, 1st, Vaishali at Hajipur in Title Suit No. 425/ 2004, by which the petition dated 16.8.2005 to recall the order dated 18.3.2005 and further to accept the written statement filed on behalf of the defendant petitioner has been rejected. 3. The admitted facts of this case are that summons was served upon the sole defendant-petitioner on 9.9.2004 and he appeared in court on 11.12.2004. thereafter on his prayer the time for filing written statement was extended till 18.3.2005 by order of the court. However, it is submitted that four days prior to 18.3.2005, the petitioner became ill and he recovered only on 2.6.2005 and thereafter filed his written statement in court on 4.6.2005. However, by order dated 18.3.2005, the court had already debarred him from filing the written statement and, therefore, the petitioner filed an application on 16.8.2005 to recall the said order and accept the written statement that he has already filed. The application of the defendant-petitioner was opposed by the plaintiff-opposite party and by the impugned order dated 27.12.2005, the learned court below rejected the said prayer stating therein that the defendant knowingly not filed the written statement inspite of personal service of summons and delay is caused not on any unavoidable reason, but only to make delay the hearing of the case. The court below also did not find the reason mentioned in the petition for not filing written statement on 18.8.2005 as convincing and did not accept the same. 4. Learned counsel for the petitioner in support of his contention that the provisions of Order 8 Rule 1 as recently amended are not mandatory relies upon a decision of the Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu vs. Union of India, 2005(4) PLJR (SC)270, in paragraph no. 4. Learned counsel for the petitioner in support of his contention that the provisions of Order 8 Rule 1 as recently amended are not mandatory relies upon a decision of the Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu vs. Union of India, 2005(4) PLJR (SC)270, in paragraph no. 22 of which it has been laid down as follows: "In construing this provision, support can also be had from Order VIII Rule 10 which provides that where any party from whom a written statement is required under Rule .1 or Rule 9, fails to present the same within the time permitted or fixed by the court, the court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision the court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to suit as it thinks fit. In the context of the provision despite use of the word "shall", the court has been given the discretion to pronounce or not to pronounce the judgment against the defendants even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. 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 vii! Rule 1. There is no restriction in Order VIII Rule 10 that after expiry of 90 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. 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." 5. Learned counsel for the opposite party, on the other hand, has supported the order passed by the court below and in support of the same relied upon a decision of the learned single Judge of this court in the case of Ram Naresh Singh and Anr. vs. Smt. Indu Devi and Ors., 2007(1) PLJR 496 . In the said case, this court while considering the applicability of Order VIII Rule 1 has taken note of the fact that the defendant has to cross two barriers before the written statement can be accepted beyond the period of 90 days. First he would have to satisfy as to why the same was not filed within the period of 30 days as originally fixed by the said Rule and only on being satisfied about the same, the court has to consider as to why they did not file the same within the period of 90 days. 6. On a consideration of the law laid down by the Apex court and this court in the aforesaid matter and several other matters, it is evident that although the law has been laid down that the provision of Order VIII Rule 1 is not mandatory, but at the same time it has been made very clear that the said Rule though directory is not to be so relaxed as to make it nugatory. The acceptance of written statement beyond the period of 90 days can only be on the basis of good reasons being shown by the defendant and it is open for the court to award cost for the delay that has been caused in the trial of the suit on account of such delay in filing of the written statement. 7. In the present matter, I find that the court itself had extended the last date for filing the written statement to 18.3.2005. 7. In the present matter, I find that the court itself had extended the last date for filing the written statement to 18.3.2005. Whether the same was done for good and sufficient reasons as required by the pror visions of Order 8 Rule 1 or not is not known, but the fact remains that was the date by which the written statement ought to have been filed by the petitioner. However the petitioner claims to have become ill, but the said ground has been rejected. So far as the written statement is concerned, it has been filed on 4.6.2005 after the petitioner recovered from illness on 2.6.2005. 8. In the facts and circumstances of the case, it would cause grave hardship to the petitioner, if the written statement is not accepted. However, since the court below was not fully satisfied in this regard and the petitioner has also delayed the matter in filing the written statement by nearly 6 months beyond the maximum period of 90 days prescribed by the newly amended provisions, it is directed that the court below shall accept the written statement of the petitioner, subject to the defendent-petitioner paying the cost of Rs. 3,000.00. 9. The civil revision application is, accordingly, allowed subject to the aforesaid directions.