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2007 DIGILAW 74 (PAT)

Ram Naresh Singh v. Indu Devi

2007-01-10

CHANDRAMAULI KR.PRASAD

body2007
Judgment Chandramauli Kr.Prasad, J. 1. Defendant Nos. 1 and 3-petitioners, aggrieved by the order dated 7.9.200 passed by the Subordinate Judge, 1 st Patna in Title Partition Suit No. 481 of 2003 rejecting the prayer to accept the written statement have preferred this revision application. 2. Facts lie in a narrow compass: Plaintiff-Opposite Party No. 1 filed suit for partition of her 1/4th share in the property described in Schedule II of the plaint. Defendant appeared in the suit on 14.10.2004 but did not file the written statement within 90 days from the date of their appearance. Hence by order dated 10.2.2005 the Subordinate Judge debarred the defendant from filing the written statement. Defendants on 30th of March, 2005 filed the written statement alongwith an application, to accept the same, inter alia alleging as follows: "1. That by the order dated 10.2.2005 this learned Court was pleased to order to debar the defendants from filing written statement. 2. That the defendant no. 1 is very old man aged about 80 years. He fell ill on 8.2.2005 and could recover from illness on 11.3.2005, hence the written statement could not be finalised. 3. That today the written statement is being filed." 3. By reason of the impugned order their prayers has been rejected. Defendants Nos. 1 and 3 aggrieved by the same has preferred this revision application, whereas defendant no. 2 has been made Opposite Party No. 2 in the case. 4. Mr. Neeraj Kumar, appearing on behalf of the petitioners submits that prescription of time for filing written statement under Order VIII Rule I of the Code of Civil Procedure is directory in nature and nothing prevents the Court from accepting the written statement filed beyond a period of 90 days. 5. In support of his submission he has placed reliance on a judgment of the Supreme Court in the case of Kailash vs. Nanhku and Ors. [ (2005)4 SCC 480 ] [:2005(3) PLJR (SC) 241] and my attention has been drawn to paragraph 46(v) of the said judgment. Same reads as follows: "46(v). 5. In support of his submission he has placed reliance on a judgment of the Supreme Court in the case of Kailash vs. Nanhku and Ors. [ (2005)4 SCC 480 ] [:2005(3) PLJR (SC) 241] and my attention has been drawn to paragraph 46(v) of the said judgment. Same 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 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 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." 6. Further reliance has been placed on a decision of the Supreme Court in the case of Shaikh Salim Haji Abdul Khayumsab vs. Kumar and Ors. [ (2006)1 SCC 46 ] and my attention has been drawn 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." 7. Mr. Jagdish Prasad Singh, appearing on behalf of the Opposite Party No. 1 however submits that the petitioners have not chosen to file written statement within 90 days from the date of their appearance and further their being no plea at all as to why they did not file the written statement within the aforesaid period, the prayer made by the petitioners for accepting the written statement filed beyond the period of 90 days was rightly rejected by the Court below. He points out that according to the petitioners own showing they appeared in the suit on 14th of October, 2004 and according to them defendant no. 1 fell sick on 8.2.2005 and recovered on 11.3.2005. He points out that the plea taken by the defendant about the sickness of defendant no. 1 is after the expiry of a period of 90 days and hence it was not a fit case in which the written statement filed after a period of 90 days is fit to be accepted. 8. Having appreciated the rival submission, I find substance in the submission of Mr. Singh. Order 8 Rule 1 of the Code of Civil Procedure which is relevant for the purpose reads as follows: "1. 8. Having appreciated the rival submission, I find substance in the submission of Mr. Singh. Order 8 Rule 1 of the Code of Civil Procedure which is relevant for the purpose reads as follows: "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. True it is that procedural law is not to be a tyrant but a servant, not a 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. It is also equally true that the power of the Court under the proviso appended to Rule 1 of Order 8 is circumscribed by the words "shall not be later than ninety days" but merely the said fact will not make the said provision mandatory in nature and in a given case the Court may direct for accepting the written statement after the expiry of ninety days. 10. From a plain reading of Order VIII Rule 1 of the Code of Civil Procedure, it is evident that the defendant is required to file the written statement of his defence within thirty days from the date of service of summons on him. Proviso to the aforesaid Rule confers jurisdiction on the Court to permit a defendant to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be letter than ninety days from the date of service of summons. Therefore, the defendant has right to file the written statement within thirty days from the date of service of summons on him and for reasons to be recorded in writing the Court may permit the defendant to file the written statement on such other day, not later than ninety days from the date of service of summons. Therefore, the defendant has right to file the written statement within thirty days from the date of service of summons on him and for reasons to be recorded in writing the Court may permit the defendant to file the written statement on such other day, not later than ninety days from the date of service of summons. However, in exceptional cases, beyond the control of the defendants, Court may permit acceptance of written statement beyond a period of ninety days also. Hence permitting the defendant to file written statement beyond 30 days and thereafter ninety days is within the discretion of the Court. 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 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, if the Court is satisfied that it was not filed for reasons beyond the control of the defendant. 12. In the present case, according to the defendants-petitioners themselves nothing prevented them from filing the written statement within thirty days from the date of appearance or within a period of ninety days. The alleged plea of sickness of defendant no. i is from 8.2.2005, which is after expiry of a period of ninety days. Further according to the defendants, defendant no. The alleged plea of sickness of defendant no. i is from 8.2.2005, which is after expiry of a period of ninety days. Further according to the defendants, defendant no. 1 was sick but nothing has been stated as to what prevented the other defendants from filing the written statement. I am of the opinion that the amendment is aimed to restrict unnecessary adjournment for filing the written statement. In the present case the defendants have stated about their illness from a date later than ninety days from the date of appearance. No reason exists as to why they did not file the written statement within 30 days from the date of appearance or within ninety days. In that view of the matter the learned Judge rightly did not accept the written statement. 13. Mr. Kumar, then submits that nothing prevents this Court from directing the acceptance of the written statement on payment of exemplary cost. In support of the submission, reliance has been placed on a decision of this Court in the case of Md. Mostakim Mian vs. Mohamad Hussain [2005(1) PUR 521] and my attention has been drawn to the following passage from paragraph 4 of the judgment which reads as follows: "However, the written statement was filed on 18.5.2004 which was accepted and the same is on record. A petition was filed on 24.7.2004 by the Opposite Party not to accept the written statement. Obviously, there was also delay in filing such petition by the Opposite Party. Order VIII Rule 1 is specific on the point which says that it should be filed within 90 days. However, it is a procedural law and it is always used in aid of justice. Moreover, petitioners were not debarred from filing written statement earlier." 14. I do not find any substance in the submission of the learned Counsel and the decision relied is clearly distinguishable. In the said case in fact the written statement filed was accepted and thereafter the prayer was made to reject the same which on the facts of the said case this Court declined to do. 15. The prescription of time for filing the written statement has been inserted to dissuade the litigants to seek unnecessary adjournments. It is a legislative intent which cannot be defeated only on the defendants offer to pay cost. 15. The prescription of time for filing the written statement has been inserted to dissuade the litigants to seek unnecessary adjournments. It is a legislative intent which cannot be defeated only on the defendants offer to pay cost. It is high time that the litigants is told loud and clear that adherence to the time limit shall be the rule and deviation an exception. In my opinion, Court below rightly did not accede to the prayer of the petitioner for accepting the written statement filed after the expiry of a period of ninety days. I do not find any error calling for interference in the present revision application. 16. I do not find any merit in the application and it is dismissed accordingly.