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Rajasthan High Court · body

2008 DIGILAW 285 (RAJ)

Laxman v. Addl. District & Sessions Judge

2008-01-30

M.N.BHANDARI

body2008
JUDGMENT 1. - By this writ petition, the petitioner has challenged the order dated 29.8.2007 passed by learned Additional District Judge (Fast Track) No. 1, Karauli whereby an application moved by the plaintiff-non-petitioners under Order 8 Rule 1 and 10 CPC was accepted. 2. Factual matrix relevant to the present matter is that the plaintiff-non-petitioners preferred a suit for cancellation of sale deed on 1.7.2002. After registration of the case, summons were issued on the defendant-petitioner on 3.7.2002 and the next late was fixed as 24.8.02. On the date so fixed, the defendant asked for time for filing of written statement and thereafter the matter was further adjourned for the same purpose on 3.10.2002, 21.11.2002 and 9.12.2002. On 9.12.2002, the defendant-petitioner preferred an application under Order 22 Rule 3 and 9 CPC stating that the plaintiff No. 1 Lohadaya died on 15.8.02 and since his legal heirs having not brought on record, thus suit abates. The application for abatement of suit was thereafter decided by the learned court below vide its order dated 5.8.04 and on rejection of the application regarding abatement of the suit, defendant-petitioner filed his written statement on the same day i.e. on 5.8.04 itself. After filing of the written statement, the matter was kept for framing of issues, however on 14.9.04 plaintiff-non-petitioners moved an application with request that written statement so filed by the defendant-petitioner should not be accepted in view of the provisions of Order 8 Rule 1 of CPC. The detailed reply of the said application was submitted by the defendant-petitioner stating that after service of the summons, time was granted by the Court for filing of the written statement till 9.12.2002, , as the defendant was having an information about the death of plaintiff No. 1 Lohadaya and was expected an application from the plaintiffs for taking his legal heirs on record. When necessary application was not moved by the plaintiffs, the defendant-petitioner moved an application under Order 22 Rule 3 and 9 of CPC. When necessary application was not moved by the plaintiffs, the defendant-petitioner moved an application under Order 22 Rule 3 and 9 of CPC. Since the said application remained pending for its decision for a period of 8 to 9 months, the written statement could not be filed as the defendant was convinced that the suit will abate as necessary steps were not taken by the plaintiffs to bring legal heirs of the deceased plaintiff No. 1, however when the application moved under Order 22 Rule 3 and 9 was finally dismissed by the Court on 5.8.04, on the same date written statement was filed and on the said date no objection was raised by the plaintiffs. 3. The learned Court below has considered factual aspects as narrated above and came to the conclusion that in view of the provisions of Order 8 Rule 1 of CPC, the period for filing of written statement is only of 30 days, however with the permission of the Court, the same can be extended till 90 days from the date of service of summons after recording its reasons by the court. The learned Court considering this provision came to the conclusion that when the summons were served on the defendant on 12.7.02 and the defendant was to put in his appearance on 24.8.02 then on the said day itself the written statement should have been filed, however, defendant failed to file written statement till 5.8.04 and reason for delay in filing of the written statement is not bona fide or satisfactory, thus right of the defendant to file written statement was closed inasmuch as the learned court below refused to take the written statement on record and the matter was kept for evidence of the plaintiffs. 4. Learned counsel appearing for the petitioner submits that the impugned order passed by the learned court below is not sustainable inasmuch as if valuable right of filing of the written statement has been closed in view of the fact that written statement already filed is not allowed to be taken on record despite of the fact that detailed reasons for non filing of written statement till 5.8.04 was given in the reply to the application moved by the plaintiff-non-petitioners under Order 8 Rule 1 and 10 of CPC. It was submitted that since plaintiff No. 1 died after service of the summons as stated by them in their application under Order 22 Rule 3 and 9 , thus unless the said application is decided, the written statement could not have been filed because in absence of taking necessary action by the plaintiffs to bring legal heirs of plaintiff No. 1 on record, the suit itself abates and if there was delay in disposal of the application so moved by the defendant under Order 22 Rule 3 and 9 of CPC then it cannot be said that there was delay on the part of the defendant to file written statement within the time frame. The period intervening after filing of the application under Order 22 Rule 3 and 9 and its decision cannot be reckoned for determination of delay in filing of the written statement, therefore, it was urged that looking to the reasons given, the written statement already filed on 5.8.04 should have been kept on record. 5. Per contra, learned counsel appearing for the plaintiff-non-petitioners urged that delay in filing of the written statement is deliberate as not only counsel for the defendant-petitioner put in his appearance on 24.8.02 itself but the court further granted time for filing the written statement on three more occasions i.e. 3.10.2002, 21.11.2002 and 9.12.2002, but no written statement was deliberately filed by the defendant-petitioner, thus written statement so filed on 5.8.04 was beyond the limitation prescribed under Order 8 Rule 1 of CPC, hence has not rightly been taken by the court below and the plaintiff-non-petitioners' application moved under Order 8 Rule 1 and 10 CPC has rightly been allowed, therefore, it was prayed that the order of the learned court below be maintained. I have heard the rival submissions of the parties and scanned the matter carefully. 6. To determine the issue involved in the present matter, it is necessary to first refer to some of the judgments of Apex Court as well as of this Court on the issue. The Hon'ble Apex Court in the case of Kailash v. Nanhku & Ors., reported in 2005(3) 603 taken up the issue pertaining to delay in filing of the written statement in reference to the provisions of Order 8 Rule 1 CPC. The Hon'ble Apex Court in the case of Kailash v. Nanhku & Ors., reported in 2005(3) 603 taken up the issue pertaining to delay in filing of the written statement in reference to the provisions of Order 8 Rule 1 CPC. The aforesaid case was pertaining on an election petition preferred under the provisions of Representation of People Act of 1951 and the written statement could not be filed within the time frame given under Order 8 Rule 1. The Hon'ble Apex Court while holding that the procedure contained in CPC apply to the trial of election petition also but with flexibility and as a guideline and while considering the provisions of Order 8 Rule 1 CPC, the Apex Court held thus : "(iv) The purpose of providing the time schedule for filing the written statement under Order 8, Rule 1 of 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 1ORDER8 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 8, Rule 1 of the CPC is not completely taken away. (v) Though Order 8, 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 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 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, however briefly, by the Court on its being satisfied. 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, however briefly, by the Court on its being satisfied. Extension of time may be allowed if it was needed to be given for the 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. 7. Another case on the same issue is reported in 2005(2) WLC (SC) Civil 390, Smt. Rani Kusum v. Smt. Kanchan Devi & Ors. . In the said case, the Hon'ble Court held that provision of Order 8 Rule 1 does not take away the power of the Court to admit written statement even after 90 days despite of negative version of a provision which was not considered to be mandatory. The Apex Court elbaratorely discussed every aspect concerning to the matter along with consequences of non-acceptance of the written statement of the defendant. It was considered that though amendment in the CPC cast an obligation on the defendant to file written statement within 30 days from the date of service of summons or even extended time of 90 days, however, the provisions of Order 8 Rule 1 does not deal with the powers of the Court and specifically take away the power of the Court to accept the written statement on record though filed beyond the time as provided for. It was held that Order 8 Rule 1 is a procedural and is not part of substantive law. The provision of Order 8 Rule 1 intends to curb the mischief of defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the plaintiff. The object of the aforesaid amended provision was taken to be to expedite the hearing and not to scuttle the same. Considering the consequence of denial to accept written statement on the record, it was held that while justice delayed may amount to justice denied but at the same time justice hurried may in some cases amount to justice buried. The object of the aforesaid amended provision was taken to be to expedite the hearing and not to scuttle the same. Considering the consequence of denial to accept written statement on the record, it was held that while justice delayed may amount to justice denied but at the same time justice hurried may in some cases amount to justice buried. The Hon'ble Apex Court elaborately considering the provisions of Order 8 Rule 1 came to the conclusion that the procedural law should not ordinarily be construed as mandatory as the same is always subservient to and is in aid to justice. The humanist rule that procedure should be the handmaid, not the mistress of legal justice compels considerations of vesting a residuary powers in judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable. It would be relevant to refer certain parts of this elaborate judgments of the Apex Court on the issue to show as to whether Order 8 Rule 1 completely take away the right of the Court to accept written statement beyond the period of 90 days. Paras 10 to 16 of the aforesaid judgment are quite relevant in this regard where issue has been dealt with. 8. Another case on the aforesaid issue is reported in 2006(1) WLC (SC) Civil 364, Mr. Shaikh Salim Haji Abdul Khayumsab v. Mr. Kumar and Ors. . In the aforesaid case also the Hon'ble Apex Court considered the issue as involved in the present matter and considering the judgment rendered in the case of Smt. Rani Kusum and also in the case of Kailash, Court came to the conclusion that refusal to accept the written statement by the trial court and the order affirmed by the High Court cannot be allowed to stand, thus same was set aside. Even this Court had also considered same issue pertaining to the scope of Order 8 Rule 1 in the case of Rameshwar Lal & Anr. v. Dayanand & Ors., reported in 2005(3) WLC (Raj.) page 237 . In the aforesaid case not only the scope of the provisions of Order 8 Rule 1 CPC was considered but it was further considered that even if the provisions of Order 8 Rule 1 CPC exists then can the Court invoke the provisions contained in Order 8 Rule 9 or Section 148 CPC. In the aforesaid case not only the scope of the provisions of Order 8 Rule 1 CPC was considered but it was further considered that even if the provisions of Order 8 Rule 1 CPC exists then can the Court invoke the provisions contained in Order 8 Rule 9 or Section 148 CPC. In para 9, Hon'ble High Court held thus : "9. A close look at the entire scheme of amendment of CPC demonstrates that while amending Order 8 Rule 1 stipulating the period for filing the written statement, the Legislature did not think it fit to amend correspondingly the provisions contained in latter part of Order 8 Rule 9, where the court has been empowered to call upon the defendant to file written statement at any time. It is thus evident that after the expiry of stipulated period provided in Order 8 Rule 1, the court still has the power to call upon the defendant to file written statement. Since the provisions of Order 8 Rule 1 are directory, time to file written statement can be extended under section 148 CPC. 9. In all these judgments (supra), it is held that provisions of Order 8 Rule 1 are not mandatory but same are directory in nature. 10. The recent case on the aforesaid issue is reported in 2007 DNJ (SC) 305 in the case of Aditya Hotels v. Bombay, Swadeshi Ltd. . In the aforesaid case, the Hon'ble Apex Court set aside the order of the trial court as well as High Court for extension of time for filing of the written statement on the ground that no reason was assigned for extension of time, thus it was held that the period of filing of the written statement cannot be extended casually but it has to be with some reasons and may be with some arrangement to compensate the plaintiff for the delay and inconvenience caused to him. 11. Looking at the present case, it reveals that the defendant-petitioner had given reasons for filing of the written statement on 5.8.04 inasmuch as after service of the summons and before filing of the written on the first date i.e. 24.08.02, since the plaintiff No. 1 died on 15.8.02, thus initially he was expecting an application for bringing legal heirs of plaintiff No. 1 on record as in absence of which, according to him, the suit itself was to abate. The Court thereafter granted time for filing of the written statement till 9.12.2002 inasmuch as on 3.10.2002 and 21.1.2002 also date was sought by the defendant to file written statement. The defendant ultimately moved application under Order 22 Rule 3 and 9 of CPC with a prayer that suit abates in view of the death of plaintiff No. 1. The said application was moved on 9.12.02 and was decided by the trial court almost after taking 8 months time and on the date when the said application was rejected i.e. 5.8.04, written statement was filed by the defendant-petitioner, therefore, petitioner-defendant had given justification for the delay in filing of the written statement by further submitting that in a view of the legal position that whenever application under Order 22 Rule 3 and 9 CPC is filed, same is required to be decided first, thus till the said application was decided, there was no occasion for the defendant to file the written statement. It was further urged that when the written statement was taken on record on 5.8.04 then subsequent objection on the next date in the shape of application by the plaintiff-non-petitioner was not even maintainable. A look at the order impugned shows that though the relevant facts were mentioned in the order, however while giving the reasons for acceptance of the application so moved by the plaintiff-non-petitioners, the Court below mainly persuaded by the provisions of Order 8, Rule 1 of CPC and thereby without even considering the fact that if an application under Order 22 Rule 3 and 9 was pending then during the pendency of the said application, written statement could have been filed by the defendant or not? It seems that the court below while making interpretation of the nature of the provisions had not kept in mind entire context in which provisions came to be enacted. It seems that the court below while making interpretation of the nature of the provisions had not kept in mind entire context in which provisions came to be enacted. The facts and circumstances of the present case suggests that till 9.12.02, the time was given for filing of the written statement by the court below and during the intervening period as stated by the plaintiff, plaintiff No. 1 Lohadaya died on 15.8.02, itself, thus it cannot be said that the defendant was not bona fide to expect an application for bringing legal heirs of the said plaintiff on record and if after waiting for some time when no such application was moved then to file an application under Order 22 Rule 3 and 10 of CPC and when the said application was ultimately rejected vide order dated 5.8.04, on the same day written statement was filed. In view of the aforesaid circumstances, it cannot be said that their exists absolutely no justification for the defendant to file written statement on 5.8.04, hence the finding recorded by the court below while passing the impugned order cannot be accepted, thus the impugned order is set aside and the written statement already filed by the defendant should be taken on record, subject to payment of cost of Rs. 5,000/- by the defendant-petitioner to the plaintiff. The learned trial court is expected to expedite the proceedings.The writ petition is allowed accordingly.Writ petition allowed. *******