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2008 DIGILAW 494 (ALL)

DURGA PRASAD v. DISTRICT JUDGE VARANASI

2008-02-29

DILIP GUPTA

body2008
DILIP GUPTA, J. ( 1 ) THE defendant of SCC Suit No. 52 of 2006 has filed this writ petition for setting aside the order dated 2lst January, 2008 passed by the judge, Small Cause Courts, by which the application filed by him seeking one month further time to file the written statement was rejected and the Suit was decreed ex-parte under Order VIII, Rule 10 of the Code of Civil Procedure. The petitioner has also sought the quashing, of the judgment and order dated 15th february, 2008 by which the revision filed by the tenant under section 25 of the provincial Small Cause Courts Act, 1887 for setting aside the aforesaid order was dismissed. ( 2 ) THE landlord had presented the plaint of the aforesaid suit for ejectment and for recovery of arrears of rent on 27th September, 2006. On 21st May, 2007 the Court directed that the case shall proceed ex-parte as the written statement was not filed. The defendant moved an application under Order IX, rule 7 of the Code of Civil Procedure. This application was allowed but the written statement was still not filed even though time was repeatedly granted by the Court. However, the last application dated 21st January, 2008 filed by the tenant seeking one month further time was rejected by the Court by the order dated 21st January, 2008 and by the same order the suit was decreed ex-parte under Order VIII, Rule 10 of the Code of Civil Procedure. The revision filed by the defendant tenant was dismissed. ( 3 ) LEARNED Counsel for the petitioner submitted that the Court below committed an illegality in rejecting the application filed by the petitioner-tenant seeking one month further time to file the written statement. He further submitted that even otherwise, the order decreeing the Suit is liable to be set aside as the Suit has been decreed merely on the ground that the defendant did not file the written statement. He further submitted that even otherwise, the order decreeing the Suit is liable to be set aside as the Suit has been decreed merely on the ground that the defendant did not file the written statement. Elaborating his submission, he contended that the Court was not entitled to act merely on the allegations of the plaint but could act on proved evidence and that no reasons whatsoever have been mentioned in the judgment for decreeing the suit, in support of his contention he has placed reliance upon the judgments of this Court in akhtar Yar Khan and others v. Azahar Yar Khan, 1993 0 JRJ 653 and in Pradeep Narain Sharma v. Satya Prakash Pandey, 2000 38 ALR 593. ( 4 ) THE first contention of the learned Counsel for the petitioner is that the provisions contained in Order VIII, Rule 1, C. P. C. relating to filing of written statement within the stipulated time are directory in nature and the Court can extend the time for filing the written statement but in the present case, the court, in an arbitrary manner, had rejected the application filed by the defendant seeking further time from the Court to file the written statement. ( 5 ) IN order to appreciate the contention advanced by the learned Counsel for the petitioner, it would be appropriate to refer to the provisions of Order viii, Rule 1, C. P. C. , as they have been amended by Amendment Act, 2002 and the same are as follows:- "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. " ( 6 ) THE Supreme Court in Kailash v. Nanhku and others, 2005 0 AIR (SCW) 2346, while considering the provision of Order VIII, Rule 1, C. P. C. , summed up the conclusions in paragraph 45 as follows:-" (iii) The purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1 of C. P. C. 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 1 of Order VIII of the C. P. C. is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provisions 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 VIII, Rule 1 of the C. P. C. is not completely taken away. (iv) Though Order VIII, Rule 1 of the C. P. C. 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 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 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 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. " (Emphasis supplied ). 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. " (Emphasis supplied ). ( 7 ) THE aforesaid decision of the Supreme Court was followed in m/s. R. N. Jadi and Brothers and others v. Subhashchandra, 2007 68 ALR (SC) 451. In this case separate judgments were delivered by Hon. Dr. Arijit Pasayat, J. for himself and for Hon. D. K. Jain, J. and by Hon, P. K. Balasubramanyan, J. ( 8 ) THE defendants therein did not file the written statement within 90 days from the date of the service of the summonses and there was a delay of 2 days. The Trial Court, accepted the written statement despite the objection raised by the plaintiff. The High Court dismissed the writ petition that had been filed to challenge the order of the Trial Court. ( 9 ) IT was observed by Hon. Dr. Arijit Pasayat, J. :- " 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 VIII, Rule 1 is procedural. It is not a part of the substantive law. Substituted Order VIII, 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 to 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 buried. " ( 10 ) IT was further observed by His Lordship that it was not in dispute that the Trial Court had granted time to the defendants to file the written statement up to 8. 6. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried. " ( 10 ) IT was further observed by His Lordship that it was not in dispute that the Trial Court had granted time to the defendants to file the written statement up to 8. 6. 2004 which fell beyond 90 days and that the written statement was actually filed on 8. 6. 2004. ( 11 ) HONble P. K. Balasubramanyan, J. , while concurring with Honble Dr. Arijit Pasayat, made further observations on the scope of Order VIII, Rule 1, C. P. C. :-"it is true that procedure is the handmaid of justice. The Court must always be anxious to do justice and to prevent victories by way of technical knockouts. But how far that concept can be stretched in the context of the amendments brought to the Code and in the light of the mischief that was sought to be averted is a question that has to be seriously considered. 1 am conscious that 1 was a party to the decision in Kailash v. Nanhku, 2005 0 AIR (SCW) 2346 which held that the provision was directory and not mandatory. But there could be situations where even a procedural provision could be construed as mandatory, no doubt retaining a power in the Court, in an appropriate case, to exercise a jurisdiction to take out the rigour of that provision or to mitigate genuine hardship. It was in that context that in Kailash v. Nanhku it was stated that the extension of time beyond 90 days was not automatic and that the Court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from the time-limit fixed by the code and the power inhering in the Court in terms of section 148 of the code. Kailash is no authority for receiving written statement, after the expiry of the period permitted by law, in a routine manner. A dispension that makes Order VIII, Rule 1 directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. Kailash is no authority for receiving written statement, after the expiry of the period permitted by law, in a routine manner. A dispension that makes Order VIII, Rule 1 directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasise that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the Court being conscious of the tact that even the power of the Court for extension inhering in section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order VIII, Rule 1 must be adhered to and that only in rare and exceptional cases. Will the breach thereof will be condoned. Such an approach by Courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in Courts. " the (emphasis supplied) ( 12 ) IN Shaikh Salim Haji Abdul Khayumsab v. Kumar and others, 2006 62 ALR (SC) 316, the Supreme Court noticed that the Trial Court had granted time to the defendant to file the written statement up to 19. 2. 2004 which fell beyond the period of 90 days and that the written statement had been filed on 20. 2. 2004 as 19. 2. 2004 was a holiday, it is in such circumstances that the Supreme Court observed that the High Court should have set aside the order of the Trial Court which had rejected the application for accepting the written statement as it was filed after 90 days. ( 13 ) IN M/s. Aditya Hotels (P) Ltd. v. Bombay Swadeshi Stores Ltd. and others, 2007 67 ALR (SC) 782, the Supreme Court emphasised that Order VIII, Rule 1, C. P. C. permits extension of time only when the Court is satisfied about the reasons which have to be recorded in writing. ( 13 ) IN M/s. Aditya Hotels (P) Ltd. v. Bombay Swadeshi Stores Ltd. and others, 2007 67 ALR (SC) 782, the Supreme Court emphasised that Order VIII, Rule 1, C. P. C. permits extension of time only when the Court is satisfied about the reasons which have to be recorded in writing. It, therefore, set aside the order passed by the trial Court and the High Court accepting the written statement after the expiry of the time fixed as no reasons were indicated in the order and remitted the matter for a fresh decision. ( 14 ) IT is, therefore, clear from the aforesaid decisions of the Supreme Court that ordinarily the time schedule contained in Order VIII, Rule 1, C. P. C. is to be followed as a rule and departure should be made only by way of exception. A prayer for extension of time made by the defendant shall not be granted as a matter of routine and merely for the asking particularly when the period of 90 days had also expired. Time may be extended by way of an exception, for reasons to be assigned by the defendant and the Court may extend the time if the circumstances are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. ( 15 ) IT is in the light of the aforesaid, principles that the facts of the present case have to be examined in order to find out whether the Court below was justified in rejecting the application filed by the defendant seeking further time from the Court to file the written statement. ( 16 ) THE records of the petition indicate that the plaint was presented on 27th September, 2006 and summons fixing 17th November, 2006 were issued to the defendant to appear and answer the claim and to file the written statement. The summons could not be served and on 17th November, 2006 the Court granted a weeks time to the plaintiff to take fresh steps and fixed 20th december, 2006. The summons were again sent by registered post but could not be served and the Court granted time for taking fresh steps within one week and fixed 8th February, 2007. On 8th February, 2007 the Court fixed 22nd March, 2007 for service of summons and filing of written statement. The summons were again sent by registered post but could not be served and the Court granted time for taking fresh steps within one week and fixed 8th February, 2007. On 8th February, 2007 the Court fixed 22nd March, 2007 for service of summons and filing of written statement. The summons were served by refusal and on 22nd March, 2007 the Court found service upon defendant to be sufficient by refusal. The Court, however, fixed 25th April, 2007 and granted one more opportunity to the defendant to file the written statement failing which it was ordered that ex-parte proceedings shall be taken. The written statement was not filed and, therefore, on 21st May, 2007 the Court directed that the case shall proceed ex-parte against the defendant and fixed 31st July, 2007 for ex-parte evidence. The defendant, however, moved an application under Order IX, Rule 7 of the Code of Civil Procedure. This application was allowed on 12th September, 2007 and time was given to the defendant to file the written statement by 12th October, 2007. On 12th October, 2007 the defendant again sought one month time to file the written statement and the court granted the lime and adjourned the matter to 20th November, 2007. On 20th November, 2007 the case was again adjourned to 30th November, 2007 for filing written statement and even on 30th November, 2007 the matter was adjourned to 21st January, 2008 for filing written statement. On 21st January, 2008 an application was filed by the defendant seeking one month further time to file the written statement as it could not be prepared because the learned counsel was busy in marriage. This application, filed by the tenant, was rejected and the suit was decreed ex-parte under Order VIII, Rule 10 of the Code of Civil Procedure on 21st January, 2008 by the same order itself. Feeling aggrieved by the aforesaid order, the tenant filed a revision. The Revisional court noticed that sufficient time was granted to the tenant to file the written statement but the same was not filed and, therefore, the Court was justified in pronouncing the judgment and order under Order VIII, Rule 10 of the Code of civil Procedure. It has, therefore, dismissed the revision by the judgment and order dated 15th February, 2008. It has, therefore, dismissed the revision by the judgment and order dated 15th February, 2008. ( 17 ) IT is, therefore, clear from the aforesaid facts that repeatedly time had been granted to the defendant to file the written statement but the defendant did not avail of this opportunity and kept on asking for further time to file the written statement. The Court rejected the application that had been filed on 21st January, 2008. As noticed above, time for filing written statement could be extended by way of exception if the circumstances were exceptional and occasioned by reasons beyond the control of the defendant. In the present case, no such circumstances existed and, therefore, the Court was justified in rejecting the application. ( 18 ) THE second contention advanced by the learned Counsel for the petitioner, however, is that even if the suit had been directed to proceed ex-parte, then too the suit could not have been decreed merely because the defendant had not filed the written statement. A perusal of the judgment does indicate that the suit was decreed under Order VIII, Rule 10 of the Code of Civil Procedure merely because the defendant had failed to file the written statement. ( 19 ) IN Akhtar Yar Khan (supra) this Court had observed:- "apart from the above, a perusal of the order dated 9. 4. 1992 by the suit was decreed ex-parte under Order VIII, Rule 10, C. P. C. would show that the Court had decreed that suit merely on the ground that the defendants did not file the written statement. The Court below has not called upon the plaintiff to give evidence neither has the plaintiff given evidence in support of his case. Even, if the defendant does nor file written statement the plaintiff still has to prove his ease. It appears that the Court below presumably thought that the failure of the defendants to file written statement amounts to admission of facts as alleged in the plaint and, therefore, decreed the suit. I am of the view that by adopting this procedure the court has manifestly erred. I am of the view that even if the defendant does not appear at all Court is not empowered to hold that the allegations made in the plaint would be deemed to be correct and so a decree can follow. I am of the view that by adopting this procedure the court has manifestly erred. I am of the view that even if the defendant does not appear at all Court is not empowered to hold that the allegations made in the plaint would be deemed to be correct and so a decree can follow. In the absence of a specific provision to that effect the plaint and the allegations contained therein do not constitute any evidence on the basis of which the Court can act. If was, therefore, necessary to record ex parte evidence of the plaintiff. It was held by this Court in the case of smt. Phuljhari Devi v. Mithai Lal, AIR 1971 AH 494, that a mere omission to file the written statement does not amount to an admission of the facts stated in the plaint. A similar view has been taken by the Delhi High Court in case AIR 1976 del 96 (supra ). In the said case it has been held that the failure of the defendant to file the written statement does not raise the presumption that the defendant admits all the allegations contained in the plaint and so the allegations of the plaintiff must be deemed to be correct. The Court is not entitled to act on the allegations of the plaint and it must act on the proved evidence before it. In the case of Smt. Krishna Devi v. Raj Kumar and another, AIR 1986 Raj 72 , the said Court had also taken a similar view when it held that the judgment the Court is abed to pronounce under Rule 10 of Order VIII, C. P. C. should conform to how the expression is defined in section 2 (g), C. P. C. It should state the ground on which it is based. A mere statement that the suit of the plaintiff is decreed under Order VIII, Rule 10 C. P. C. could not be sustained. " (ERmphasis supplied) ( 20 ) IN Pradeep Narain Sharma (supra) this Court also observed:- "now let us examine the question whether Rule 10, Order VIII empowers the Court to pass a judgment accepting the plaint case as gospel truth. Even if the defendant does not file written statement, the plaintiff has to prove and establish his case. He cannot succeed on the weakness of the defence or absence of the defence. Even if the defendant does not file written statement, the plaintiff has to prove and establish his case. He cannot succeed on the weakness of the defence or absence of the defence. Failure of the defendant to file written statement does not ipso facto entitle the plaintiff to a decree. There is an essential distinction between the phrases, burden of proof as a matter of law and pleadings on the one hand and as matter of leading evidence on the other. In the former scene it is upon the party who comes to Court for a decision on the existence of certain facts which he asserts. That burden is constant through out the trial. The burden to prove in the sense of adducing evidence shifts from time to time. But such shifting takes place only when the initial burden is discharged. Therefore, it is for the plaintiff to establish his case by discharge of the initial burden and take advantage of the shifting of onus in the absence of written statement. But then it is for the plaintiff to ascertain the facts establishing his right or entitlement to the relief even though there may not be a written statement. " (Emphasis supplied) ( 21 ) IN view of the aforesaid decisions it is clear that even if the defendant does not file the written statement, the plaintiff has still to prove his case and the Court cannot decree the suit merely because the defendant has not filed the written statement. It has also been observed that the judgment should also indicate, the grounds on which it is based. Thus the Trial Court was not justified in decreeing the suit merely because the defendant had not filed the written statement. Thus for all the reasons stated above, it has to be held that the courts below were justified in rejecting the application dated 21st January, 2008 filed by the defendant seeking one month further time to file the written statement but the suit could not have been decreed under Order VIII, Rule 10 of the Code of Civil Procedure merely because the defendant had failed to file the written statement. ( 22 ) THE judgment dated 21st January, 2008 by which the suit had been decreed is, therefore, set aside but the order rejecting the application dated 21st january, 2008 seeking time to file the written statement is confirmed. ( 22 ) THE judgment dated 21st January, 2008 by which the suit had been decreed is, therefore, set aside but the order rejecting the application dated 21st january, 2008 seeking time to file the written statement is confirmed. The learned Judge, Small Cause Courts shall now proceed in accordance with law and decide the suit expeditiously. ( 23 ) THE writ petition, therefore, succeeds and is allowed to the extent indicated above. Petition Allowed. .