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2007 DIGILAW 543 (GAU)

Awadh Kumar Yadav v. Dhani Ram Sahu

2007-08-16

T.NANDAKUMAR SINGH

body2007
JUDGMENT T. Nanda Kumar Singh, J. 1. Heard Mr N. Dhar, learned Counsel appearing for the Petitioner/defendant Nos. 2, 3 and 4 as well as Mr. G.C. Phukan, learned Counsel appearing for the respondent-Plaintiff. 2. This revision petition is directed against the order of the learned Munsiff, Hojai dated 27.3.2007 passed in Petition No. 890 of 2005 (T.S. No. 38 of 2004) for not admitting the written statement filed by the Petitioner-defendant Nos. 2, 3 and 4. 3. The facts stated in short leading to the filing of the present revision petition is that the respondent-Plaintiff filed the Title Suit No. 38 of 2004 in the Court of the Civil Judge (Junior Division) against the present Petitioner and other for declaration that the respondent-Plaintiff is an unelectable occupant tenant in respect of the suit land and confirmation of his possession of the suit land. 4. From the submission of the learned Counsels appearing for both the parties, it appears that the Petitioner/defendant Nos. 2, 3 and 4 had entered appearance in the Title Suit No. 38 of 2004 on 16.7.2004 and on that day an application was filed on behalf of the present Petitioner-defendant Nos. 2, 3 and 4 praying for sometime as the Petitioner-defendant Nos. 2, 3 and 4 could not appear before the Court due to irregular Railway Service because of the floods in Bihar. On the very day i.e. 16.7.2004, the respondent-Plaintiff filed an application in the trial Court for amendment of the plaint. 5. On 27.9.2004, the Petitioner/defendant Nos. 2,3 and 4 filed their objection to the said application filed by the respondent-Plaintiff for amendment of the plaint. 6. After hearing the learned Counsels of both the parties and also on perusal of the written objection filed by the Petitioner/defendant Nos. 2,3 and 4 to the said application for amendment, the learned Court passed the order dated 9.12.2004 for allowing the said application for amendment of the plaint and fix 5.1.2005 for filing the additional written statement. 7. On 5.1.2005, the respondent-Plaintiff filed the amended plaint and again the learned trial Court fixed 20.1.2005 for filing of the additional written statement by the Petitioner-defendant Nos. 2, 3 and 4. Ultimately the Petitioner-defendant Nos. 2, 3 and 4 filed their written statement on 20.5.2005. 7. On 5.1.2005, the respondent-Plaintiff filed the amended plaint and again the learned trial Court fixed 20.1.2005 for filing of the additional written statement by the Petitioner-defendant Nos. 2, 3 and 4. Ultimately the Petitioner-defendant Nos. 2, 3 and 4 filed their written statement on 20.5.2005. It is admitted by both the parties at the bar that the learned Munsiff had accepted the written statement filed by the Petitioner/defendant Nos. 2,3 and 4 on 20.1.2005. 8. Later on, the respondent-Plaintiff filed a petition being petition No. 890 of 2005 before the trial Court for rejecting the written statement of the Petitioner-defendant Nos. 2, 3 and 4 which was already accepted by the learned trial Court on 20.1.2005. The copy of the said application i.e. petition No. 890 of 2005 is available at Annexure-7 to the present revision petition. It appears that the objections from the side of the respondent-Plaintiff to the acceptance of the written statement dated 20.1.2005 were that the written statement filed by the' Petitioner-defendant Nos. 2, 3 and 4 cannot be accepted as per provision of Order VIII, Rule 1 of the Code of Civil Procedure. It would be apt and appropriate to quote the Order VIII, Rule 1 of the Code of Civil Procedure- 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. 9. The learned trial Court by interpreting the Order 8, Rule 1 of the Code of Civil Procedure in a hyper-technical manner had passed the impugned order dated 27.3.2005 for not admitting the written statement of the Petitioner-defendant Nos. 2, 3 and 4 which had already been accepted on 20.1.2005. 10. It is well-settled principle & law that the rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure, which promotes justice and prevents miscarriage of justice has to be preferred. 11. 2, 3 and 4 which had already been accepted on 20.1.2005. 10. It is well-settled principle & law that the rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure, which promotes justice and prevents miscarriage of justice has to be preferred. 11. The Apex Court in Surya Dev Rai v. Ram Chander Rai and Ors. reported in (2003) 6 SCC 675 held that the Code of Civil Procedure Amendment Act 46 of 1999 is based on the Malimath Committee's recommendations. The Committee was of the opinion that the expression employed in Section 115 Code of Civil Procedure, which enables interference in revision on the ground that the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made, left open wide scope for the exercise of the revisional power with all types of interlocutory orders and this was substantially contributing towards delay in the disposal of cases. The Committee did not favour denuding the High Court of the power of revision but strongly felt that the power should be suitably curtailed. This Court can exercise the revisional power under Section 115 of the Code of Civil Procedure against the interlocutory orders which occasion a failure of justice and irreparable injury to the party against whom it was made. In the instant case if the written statement dated 20.1.2005 which has already been accepted by the trial Court is to be rejected by interpreting the Order VIII, Rule 1 of the Code of Civil Procedure in a hyper-technical view would result to injustice and irreparable injury to the Petitioner-defendant Nos. 2, 3 and 4. The Apex Court in Salem Advocate Bar Association v. Union of India reported in AIR 2005 SC 3353 had discussed and interpreted the Order VIII, Rule 1 of the Code of Civil Procedure. The Apex Court in Salem Advocate Bar Association (supra) held that the provision providing for maximum period of 90 days for filing written statement in Order VIII, Rule 1 of the Code of Civil Procedure is not mandatory but the order for extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. The time can be extended only in exceptionally hard cases. It was also held that the rule of procedure is made to advance the cause of justice and not to defeat it. The construction of the rule or procedure, which promotes justice and prevents miscarriage, has to be preferred. The rules or procedure are hand-maid of justice and not its mistress. 12. Para 21 and 22 in Salem Advocate Bar Association (supra) which reads as follows: 21. "The use of the word "shall" in Order VIII Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word "shall" is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure, which promotes justice and prevents miscarriage, has to be preferred. The rules or procedure are handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice. 22. 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 the relation to the suit as it thinks fit. On failure to file the 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 work "shall" the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In the context of the provision, despite use of the work "shall" the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant 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 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'. 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, VII Rule 1. 13. The Apex Court again in Kailash v. Nanhku and Ors. reported in (2005) 4 SCC 480 had considered order VIII Rule 1 of the Code of Civil Procedure and held that the extension of time sought for by the defendant from the Court whether within 30 days or 90 days should not be granted as a matter of routine and merely for asking when the period of 90 days was expired. The Apex Court further held that inspite of the time limits prescribed in Order VIII, Rule 1having expired, the Court is not powerless to take the written statement on record though filed beyond time if the Court required such written statement. Para 42 of SCC in Kailash v. Nanhku and Ors. (supra) reads as follows: 42. The Apex Court further held that inspite of the time limits prescribed in Order VIII, Rule 1having expired, the Court is not powerless to take the written statement on record though filed beyond time if the Court required such written statement. Para 42 of SCC in Kailash v. Nanhku and Ors. (supra) reads as follows: 42. Ordinarily, the time schedule prescribed by Order 8, Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for the asking, more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order 8, Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended. 14. The Apex Court in Aditya Hotels (P) Ltd. v. Bombay Swadeshi Stores Ltd. and Ors. reported in AIR 2007 SC 1574 , held that the extension of time for filing written statement after the expiry of 90 days would be on the reasons assigned by the defendant which are satisfactory to the trial Court. The extension of time for filing written statement should be only on the interest of justice, and grave injustice would be occasioned if the time were not extended. 15. Para 7 of the AIR in Aditya Hotels (P) Ltd. (supra) reads as follows: 7. The parameters for extending the time granted by Order VIII, Rule 1 of the Code have been delineated by this Court in several cases. In Kailash v. Nanhku and Ors. 2005(4) SCC 480 it was noted as follows: 42. 15. Para 7 of the AIR in Aditya Hotels (P) Ltd. (supra) reads as follows: 7. The parameters for extending the time granted by Order VIII, Rule 1 of the Code have been delineated by this Court in several cases. In Kailash v. Nanhku and Ors. 2005(4) SCC 480 it was noted as follows: 42. Ordinarily, the time schedule prescribed by Order 8, Rule 1has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the Court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for the asking, more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order 8, Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended. 44. 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, shall the defendant 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 the asking and (ii) to compensate the Plaintiff for the delay and inconvenience caused to him. 16. The Court may impose costs for dual purpose (i) to deter the defendant from seeking any extension of time just for the asking and (ii) to compensate the Plaintiff for the delay and inconvenience caused to him. 16. From the ratio laid down in the above cases it is crystal clear that the Court is not powerless to accept the written statement which was filed after the expiry of 90 days prescribed in Order VIII, Rule1 Code of Civil Procedure and also that the strict interpretation of Order VIII, Rule 1 Code of Civil Procedure would defeat justice. But the restriction on the part of the Court in accepting the written statement after the expiry of 90 days mentioned in Order VIII, Rule 1 Code of Civil Procedure is that the Court should see and satisfy that whether there are sufficient reasons for the delay in filing the written statement by the defendant and also as to whether the non-acceptance of the written statement would cause injustice to the defendant. 17. In the factual circumstances discussed above, this Court is of the considered view that there are sufficient reasons for accepting the written statement filed by the Petitioner-defendant Nos. 2, 3 and 4 after the expiry of 90 days mentioned in Order VIII, Rule 1 Code of Civil Procedure and also that injustice would cause to the Petitioners/defendants if their written statement which has already been accepted has to return only because it was happens to be accepted after the expiry of 90 days. 18. For the reasons discussed above, this Court is of the considered view, the Petitioner-defendant Nos. 2, 3 and 4 could make out sufficient reasons for interference with the impugned order dated 27.3.2007. Accordingly, the impugned order dated 27.3.2007 is set aside. The learned trial Court should accept the written statement of the Petitioner-defendant Nos. 2, 3 and 4 and proceed the trial of the Title Suit No.38 of 2004 accordingly to law as expeditious as possible. The revision petition is allowed. 19. As agreed to by both the parties, Petitioner and respondents are to appear before the trial Court on 27.9.2007. Petition allowed