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2007 DIGILAW 441 (PAT)

Avilash Kumar @ Mukesh Kumar v. Brahmadeo Singh

2007-02-27

CHANDRAMAULI KR.PRASAD

body2007
Judgment CHANDRAMAULI KR.PRASAD, J. 1. Defendant-petitioner, being aggrieved by the order dated 6.4.2005 passed by the Subordinate Judge, II, Patna in T.S. No. 394 of 2002 refusing to recall the order dated 26.2.2003 debarring him from filing the written statement, has preferred this application. 2. Defendant, on service of summon, appeared in the suit on 30.9.2002. According to him, he appeard in the suit through an advocate who told him to come only after the information is sent to him. When he did not receive any communication through his advocate, he came to meet him on 21.11.2004 but failed. Later, on 14.3.2005 he came to know that hearing of the suit is going on and further that his advocate was murdered on 3.12.2002, so he was not informed by him. He also came to know that in the absence of the advocate, by order dated 26.2.2003, he was debarred fromfiling the written statement. Accordingly, he filed application dated 21.3.2005 for recall of the said order and for permitting him to file the written statement. By reason of the impugned order, said prayer has been rejected. 3. Mr. Raj Shekhar, learned Counsel appearing on behalf of the petitioner, contends that the petitioner, having shown sufficient cause, the order debarring him from filing the written statement, ought to have been recalled. He further points out that nothing prevents the Court from accepting the written statement beyond the period stipulated under Order 8 Rule 1 of the Code of Civil Procedure. In support of his submission, he has placed reliance on a decision of the Supreme Court in the case of Kailash Vs. Nanhku and ors 2005 (3) PLJR 241 (SC) and my attention has been drawn to sub-paragraph nos.(iv) and (v) of paragraph no. 45 the judgment, which read as follows: "(iv).-The purpose of providing the time schedule for filing the written statement under Order VIII Rule 1 of the CPC 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 extend the time. Though the language of the proviso to Rule 1 of Order VIII of the CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the court to extend the time. Though the language of the proviso to Rule 1 of Order VIII of the CPC 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 Order VIII Rule 1 of the CPC is not completely taken away; (v).- Though Order VIII, Rule 1 of the CPC is a part of Procedural law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for the asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the court oh its being satisfied. Extension to be given for circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time- may be demanded, depending on the facts and circumstances of a given case." 4. Mr. Nagendra Kumar Singh, learned Counsel appearing on behalf of plaintiff- Opposite Party Nos.1 to 3, however, contends that the defendant, having not chosen to file the written statement within 30 days and thereafter, within 90 days, and no cause having been shown for not filing the written statement within the aforesaid period, the Court below rightly rejected his prayer. In support of his submission, he has placed reliance on a judgment of this Court in the case of Ram Naresh Singh and another Vs. In support of his submission, he has placed reliance on a judgment of this Court in the case of Ram Naresh Singh and another Vs. Smt. Indu Devi & ors 2007 (1) PLJR 496 and my attention has been drawn to paragraph no.11 of the judgment which reads as follows: "11.- In other words, berfore a defendant is permitted to file written statement beyond ninety days, he has to cross two barriers. First he will have to satisfy why he did not file the written statement within 30 days. If the Court is satisfied with the cause shown, then the second barrier would be to satisfy the Court why he did not file the written statement within ninety days. If the Court is satisfied on both the counts by the cause shown, for reasons to be recorded in writing, it may consider the reason for not filing the written statement within 90 days and permit its acceptance after the period of ninety days, it the Court is satisfied that it was not filed for reasons beyond the control of the defendant." 5. Having considered the rival submission, I do not find any substance in the submission of Mr. Shekhar and the authority relied on, in no way, supports the case of the petitioner. Petitioner, on his own showing, had appeared in the suit on 30.9.2002. Order 8 Rule 1 of the Code of Civil Procedure casts duty upon him to file the written statement within 30 days from the date of service of summons and there is nothing on the record to show as to why he did not carry out the said obligation. Though, the Court has discretion to extend the time for filing the written statement, which shall not be later than 90 days from the date of service of summons under the proviso of Order 8 Rule 1 of the Code of Civil Procedure, but why the written statement was not filed within this period is also not explained. Merely, the fact that the counsel to whom he engaged was murdered on 3.10.2002, shall not absolve the obligation put on the defendant by law under Order 8 Rule 1 of the Code of Civil Procedure prescribing the time for filing the written statement. 6. Now I revert to the authority of the Supreme Court in the case of Kailash (supra). 6. Now I revert to the authority of the Supreme Court in the case of Kailash (supra). Same in no way advances the case of the petitioner. The power to extend time for filing the written statement beyond the time stipulated under Order 8 Rule 1 of the Code of Civil Procedure is not completely taken away but ordinarily the time schedule contained in.the provision is to be followed as a rule and departure therefrom shall be by way of exception. Hence, it may be possible in a given case to permit the defendant to file the written statement beyond a period of ninety days when exceptional cause over which the defendant may not have control, is shown. 7. Here, in the present case, defendant had not offered any explanation as to why he did not carry out its obligation by filing the written statement within the time stipulated. Defendant on his showing had appeared in the suit on 30.9.2002 and his lawyer was murdered on 3.12.2002, which fact he came to know on 14.3.2005. It seems that after appearing in the suit, he had forgotten about it. Law expected from him to file the written statement within a specified time. Why he did not enquire about the progress of the case from the date of appearance, i.e. 30.9.2002 till 14.3.2005 has not at all been explained. It is evident that he has taken the matter very casually. 8. In my opinion, the prescription of time for filing the written statement has been inserted to avoid delay and unnecessary adjournment. This is a legislative intent which cannot be defeated in a case in which the defendant does not make any effort to comple the same. 9. I do not find, any merit in this application and it is dismissed accordingly, but without any order as to costs.