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2007 DIGILAW 735 (PAT)

Bhagwat Yadav v. Bader Alam

2007-04-12

CHANDRAMAULI KR.PRASAD

body2007
Judgment Chandramauli Kr.Prasad, J. 1. Defendants-petitioners, aggrieved by the order dated 12.7.2005 passed by the Subordinate Judge 1st, Nawada in Title Suit No. 84 of 2000 rejecting the application to recall the order debarring the defendants from filing the written statement and fixing the case for ex parte hearing, has preferred this application. 2. Short facts necessary for the decision of the present application are that the defendants-petitioners appeared in the suit on 24.3.2004. The case was adjourned from time to time but they did not file the written statement and ultimately by order dated 1.11.2004 they were debarred from filing the written statement and the suit fixed fa ex parte hearing. Thereafter the witnesses were examined and cross-examined by these defendants. After P.W. 4 was examined on behalf of the plaintiffs these defendants prayed for time to crossexamine him. On their prayer the case was adjourned to 6.6.2005. On the said date, these defendants filed application for recall of the order dated 1.11.2004 and permitting them to file the written statement. By reason of the impugned order, said prayer has been rejected. 3. Mr. Sujeet Kumar Gupta, appearing on behalf of the petitioners submits that prescription of time for filing the written statement under Order VIII Rule 1 of the Code of Civil Procedure is directory in nature and nothing prevents the Court from accepting the written statement filed belatedly. 4. In support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of Kailash vs. Nanhku and others [ 2005(4) SCC 480 ] [: 2005(3) PLJR (SC)241] and my attention has been drawn to paragraph 46(v) of the said judgment, which reads as follows: "46(v) Though Order 8 Rule I CPC is a part of procedural law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded 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. 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. Extention 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 on its being satisfied. Extension of time may be allowed if it is needed 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." 5. Reliance has also been placed on a decision of the Supreme Court in the case of Smt. Rani Kusurr: vs. Smt. Kanchan Devi & Ors. [2005(4) PLJR 126] and my pointed attention has been drawn to paragraph 16 of the judgment, which reads as follows: "It is aiso to be noted that though the power of the Court under the proviso appended to Rule 1 of Order VIII is circumscribed by the words"shall not be later than ninety days" but the consequences flowing from non-extension of time are not specifically provided though they may be read by necessary implication. Merely, because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form." 6. Yet another decision on which reliance has been placed is the decision of the learned Single Judge of this Court in the case of Baidyanath Singh @ Baijnath Singh & Ors. vs. Ram Binay Singh & Ors. [ 2005(4) PLJR 366 ], in which it has been held as follows: "7. Yet another decision on which reliance has been placed is the decision of the learned Single Judge of this Court in the case of Baidyanath Singh @ Baijnath Singh & Ors. vs. Ram Binay Singh & Ors. [ 2005(4) PLJR 366 ], in which it has been held as follows: "7. In the net result, the impugned order of the trial court is found to be not in consonance with the aforesaid principle of the amended provision of Order VIII, Rule 1 of the C.P.C. and contrary to the proposition of law propounded in the aforesaid case-law in not correctly appreciating the amended provision of Order Viii, Rule 1 with proviso of the C.RC. that it is not mandatory but is only directory and also that there was sufficient satisfactory ground which was accepted by the trial court. Therefore, this Court is left with no alternative but to raise its hands in helplessness in approving or affirming the impugned order of the trial court and also to quash the impugned order by allowing the application of the petitioners-original defendants with cost of Rs. 3,000/- which is directed to be paid in the trial court within a period of two months from today. The application for permission for filing the written statement under amended Order VIII, Rule 1 with proviso of the C.P.C., of the defendants-petitioners herein, is allowed and the impugned order of the trial court dated 20.8.2004 in Title Suit No. 94 of 2003 is quashed with the aforesaid amount of cost." 7. Further reliance has been placed on a decision of the Supreme Court in the case of Shaikh Salirn Haji Abdul Khayumsah vs. Kumar and Others [ 2006(1) SCC 46 ] and reference has been made to the following passage from paragraph 9 of the judgment, which reads as follows: "Order 8 Rule 1 after the amendment casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the Court and also does not specifically take away the power of the Court to take the written statement on record though filed beyond the time as provided for. Further, the nature of the provision contained in Order 8 Rule 1 is procedural. The provision does not deal with the power of the Court and also does not specifically take away the power of the Court to take the written statement on record though filed beyond the time as provided for. Further, the nature of the provision contained in Order 8 Rule 1 is procedural. It is not a part of the substantive law. Substituted Order 8 Rule 1 intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases, causing inconvenience to the plaintiffs and the petitioners approaching the Court for quick relief and also the serious inconvenience of the Court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice burried." 8. Despite service of notice, nobody appears on behalf of the opposite party. 9. Having heard learned Counsel for the petitioners and after going through the decisions of the Supreme Court and this Court referred to above, I do not have the slightest hesitation in accepting the broad submission of Mr. Gupta that prescription of time in Rule 1 of Order VIII of the Code of Civil Procedure is directory in nature. The words "shall not be later than ninety days" used in proviso of Rule 1 of Order VIII is couched in negative which implies its mandatory character but this is not without exception. Keeping in view the entire scheme the Supreme Court held the proviso to be directory though worded in the negative forms. 10. Procedural law is not to a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. At the same time one cannot lose sight of the factors which persuaded the Parliament to enact the provision in its present rorm. It intended to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of the cases. It is aimed to ex! pedite the hearing not to scuttle the same. Ordinarily the time schedule contained is to be followed as a rule and departure therefrom would be by way of exception. Extension of time must not be granted as a matter of routine and merely for the asking. It is aimed to ex! pedite the hearing not to scuttle the same. Ordinarily the time schedule contained is to be followed as a rule and departure therefrom would be by way of exception. Extension of time must not be granted as a matter of routine and merely for the asking. Extension may be allowed by way of an exception, for reasons to be assigned briefly. It may appear that by strict construction, the defendants may in few cases be deprived of his property or other valuable rights but in the face of the language of Order VIII Rule 1 of the Code of Civil Procedure, the court is not expected to take a lenient view and defeat the legislative object. May be in few cases defendants may suffer on account of such construction, attributable to him only because of their own casual approach but in my opinion a liberal interpretation may derail the entire civil justice system. I am firmly of the view that only strict construction which the Court is obliged to make in view of the language the legislature used, can help in bringing the civil justice system in track. 11. I had the occasion to consider this question in detail in the case of Ram Naresh Singh & Anr, vs. Smt. Indu Devi & Ors. [ 2007(1) PLJR 496 ] in which I have held as follows : "11. However, in my opinion before a written statement is accepted beyond a period of 90 days from the date of service of summon a defendant has to first furnish sufficient cause to the satisfaction of Court why it did not file the written statement within 30 days and thereafter within ninety days and in the absence of any good cause for not filing the written statement within 30 days and thereafter before, ninety days, the written statement filed beyond a period of ninety days from the date of appearance of the defendants cannot be accepted. In other words, before 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. 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, if the Court is satisfied that it was not filed for reasons beyond the control of the defendant." 12. Bearing in mind the principle aforesaid, when I proceed to examine the facts of the present case, I am of the opinion that the order impugned does not suffer from any error. Defendants-petitioners appeared in the suit on 24.3.2004, but did not file the written statement and ultimately debarred from filing the written statement and case fixed for ex parte hearing by order dated 1.11.2004, Thereafter the witnesses on behalf of the plaintiffs were examined and in fact crossexamined by these defendants. After RW. 4 was examined on behalf of the plaintiffs, these defendants prayed for time to cross-examine him and the case was adjourned for that purpose. It is only thereafter they woke-up and filed application on 6.6.2005 for recall pf the order dated 1.11.2004 and for permission to file the written statement. I am of the opinion that reason for not filing the written statement cannot be said to be beyond the control of the defendants and, therefore, the learned Judge did not err in rejecting the application filed for recall of the order and to file the written statement. 13. I do not find any merit in the application and it is dismissed accordingly but without any order as to cost.