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2008 DIGILAW 2267 (ALL)

MURLI MANOHAR v. U. P. SUGAR COMPANY LTD.

2008-11-15

TARUN AGARWALA

body2008
JUDGMENT Hon’ble Tarun Agarwala, J.—The opposite party is represented through Sri C.B. Gupta and with the consent of the parties, the present writ petition is being disposed of at the admission stage itself without calling for a counter affidavit since no factual controversy is involved. 2. Heard Sri H.N. Singh, the learned counsel for the defendant/petitioner and Sri C.B. Gupta, the learned counsel for the plaintiff/respondent. 3. The plaintiff/respondent had filed a suit in the year 1998 for a permanent injunction restraining the defendant from interfering in the peaceful possession of the property in question. The order sheet of the court below which has been annexed as Annexure 2 to the writ petition indicates that the petitioner was served with the plaint in the year 2002. The order sheet from 1998 to 2002 indicates that for a substantial period of time, the Court was vacant and there was no presiding officer so no judicial proceeding went on in the said case. Between 2002 till 26.9.2007, the order sheet indicates that on most dates either the Advocates were on strike, and therefore, no judicial work could be done or the prescribed officer was on leave or the Court was vacant. 4. It is alleged that the written statement was eventually filed when the Court started functioning on 29.9.07 which was opposed by the plaintiff and consequently by the impugned order dated 30.8.08, the trial Court rejected the application of the petitioner to keep the written statement on the record on the ground that there has been a substantial delay in filing the written statement. The petitioner, being aggrieved by the said order, filed a revision which was also dismissed and consequently, the present writ petition has been filed. 5. The provision of Order 8 Rule 1 of the C.P.C. stipulates that the written statement should be filed within 90 days from the date of service. The petitioner, being aggrieved by the said order, filed a revision which was also dismissed and consequently, the present writ petition has been filed. 5. The provision of Order 8 Rule 1 of the C.P.C. stipulates that the written statement should be filed within 90 days from the date of service. The Supreme Court, however has held in the case of Ram Kusum (Smt.) v. Kanchan Devi (Smt.) and others, 2005 (6) SCC 705 ; Kailash v. Nanku and others, AIR 2005 (4) SCC 480 ; Shaikh Salim Haji Abdul Khayumsab v. Kumar and others, AIR 2006 SC 396 and Salem Advocate Bar Association Tamil Nadu v. Union of India, AIR 2005 SC 3353 , that the provision of Order 8 Rule 1 of the C.P.C is directory in nature, being procedural and is not mandatory and that the trial court can extend the time for filing the written statement on sufficient cause being shown. The Supreme Court also observed that observance of the time schedule should be the rule and departure from it can only be made on satisfactory reasons to be recorded. 6. In the present case, admittedly a copy of the plaint was served in the year 2002 and the written statement was filed in the year 2007 and consequently there is a delay of approximately five years. This is a substantial delay and the Court below consequently rejected the prayer of the defendant to keep the written statement on record. 7. Normally a delay of five years in filing the written statement by itself is a substantial ground to refuse to extend the time for filing the written statement under Order 8 Rule 1 of the C.P.C. but, in the present facts and circumstances of the case, when the Court peruses the order sheet, one finds that the Court was not functioning and was lying vacant for a substantial period of time and consequently, no occasion arose for the defendant to file the written statement. It is a common knowledge that when the Court is vacant, no judicial functioning takes place and only a date is fixed by the office and on this basis an impression is given to the parties that documents such as the written statement or any other application would be filed or could be filed, as and when, the Court starts functioning and presiding officer is available to pass a judicial order. 8. In the light of the order sheet indicating that the Court was vacant, this Court finds that the delay in filing the written statement was not deliberate on the part of the defendant. Further, this Court takes judicial notice of the fact that the defendant is a tenure holder and is contesting against the might of a sugar company who is the plaintiff and consequently, this Court feels that the petitioner should be given a chance to defend himself. 9. In view of the aforesaid, this Court is of the opinion that substantial justice would be done, if the written statement is taken on record on payment of cost. Consequently, the impugned orders cannot be sustained and are quashed. The writ petition is allowed. The written statement of the petitioner-defendant would be taken on record subject to payment of cost of Rs. 5000/- which the petitioner will deposit before the trial Court within six weeks from today. If such an amount is deposited, it would be open to the plaintiff to withdraw the said amount. This Court further directs the trial Court to decide the suit expeditiously. ————