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Allahabad High Court · body

2008 DIGILAW 930 (ALL)

RAM LAL v. BRIJBALA

2008-04-24

DILIP GUPTA

body2008
DILIP GUPTA, J. ( 1 ) THIS petition has been filed by the tenant for setting aside the order dated 23rd February, 2005 by which the Prescribed Authority, in the proceeding under section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the act) rejected the application filed by the tenant for setting aside the order directing the case to proceed ex-parte under Order VIII, Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as cpc) and for accepting the written statement. ( 2 ) THE records of the writ petition indicate that the landlord filed the application under section 21 (1) (a) of the Act for release of the shop on 24th july, 2002 which was registered as P. A. Case No. 732 of 2002. Notices were issued to the opposite parties fixing 9th September, 2002 for filing the objections. This case was subsequently adjourned to 17th October, 2002. On 17th October, 2002 the opposite parties appeared and sought time to file their objections. Time was granted up to 13th November, 2002. The matter proceeded and thereafter on 24th March, 2003 the Prescribed Authority granted time up to 8th May, 2003 to the opposite parties to file their objections. It was also observed that in case the objections were not filed, the case will proceed ex-parte. The objections were not filed by the opposite parties within the aforesaid stipulated time and ultimately the Prescribed Authority passed an order on 22nd October, 2003 that the case shall proceed ex-parte against the opposite parties since they had not filed their objections in spite of several opportunities having been granted to them. ( 3 ) THE opposite parties then filed an application on 24th November, 2003 for recalling the order dated 22nd October, 2003 and also sought two days time for filing their objections. The landlord filed objections to the said application. The Prescribed Authority rejected the said application filed by the opposite parties on 23rd February, 2005. It is this order that has been impugned in the present petition. The landlord filed objections to the said application. The Prescribed Authority rejected the said application filed by the opposite parties on 23rd February, 2005. It is this order that has been impugned in the present petition. ( 4 ) THE 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 CPC, 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 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 1 of Order VIII 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. Though, the language of the proviso to Rule 1 of Order VIII 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 VIII, Rule 1 of the CPC is not completely taken away. (iv) Though Order VIII, 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 the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extention of time made by the defendant shall not be granted just us 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) ( 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 Honble Dr. Arijit Pasayat, J. for himself and for honble D. K. Jain, J, and by Honble 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 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 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 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. 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 Hon. 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. 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. I am conscious that I 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 statements, after the expiry of the period permitted by law, in a routine manner. A dispensation that makes Order 8, 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 fact 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 8, Rule 1 must be adhered to and that only in rare and exceptional cases, will the breach thereof will be condoned. It would be proper to encourage the belief in litigants that the imperative of Order 8, 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. " (emphasis supplied) ( 12 ) IN Shaikh Salim Haji Abdul Khayumsab v. Kumar and others1, 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, the Supreme Court emphasised that Order VIII, Rule 1 CPC 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 tile 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 CPC 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. 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 ) IN the present case a perusal of the application dated 24th November, 2003 filed by the petitioners indicates that on 22nd October, 2003 an application had been filed on behalf of the opposite parties for granting time to file the objections and in the order-sheet the opposite parties had signed believing that time had been granted and the next date fixed was 23rd November, 2003. It is only when the matter was taken up on 23rd November, 2003 that it came to their knowledge that the earlier application filed for grant of time to file the objections was rejected by the Prescribed Authority on 22nd October, 2003. It is in such circumstances that the application was filed for recall of the order and for granting two days time to file objections. The Prescribed Authority rejected the application holding that under the amended provisions of Order VIII, Rule 1 CPC the objections were required to be filed within ninety days. It is, therefore, clear that sufficient explanation had been given by the opposite parties but the Prescribed Authority fell in error in rejecting the application merely on the ground that the objections were required to be filed within ninety days. ( 17 ) IN view of the aforesaid discussion the order dated 23rd February, 2005 passed by the Prescribed Authority in P. A. Case No. 32 of 2002 is set aside. The objections should be filed within 10 days from today, if they have not already been filed. The writ petition, therefore, succeeds and is allowed to the extent indicated above. ( 18 ) THE respondent No. 3 shall, however, be entitled to a cost of Rs. The objections should be filed within 10 days from today, if they have not already been filed. The writ petition, therefore, succeeds and is allowed to the extent indicated above. ( 18 ) THE respondent No. 3 shall, however, be entitled to a cost of Rs. 500/-which shall be deposited by the petitioner before the Prescribed Authority within three weeks from today and on such deposit being made, the amount shall be paid to the landlord forthwith. ( 19 ) LEARNED Counsel for the respondents also submitted that since the application under section 21 (1) (a) of the Act was filed on 24th July, 2002 and the case has remained pending for substantial period of time, a direction may be issued to the Prescribed Authority for deciding the application within a fixed period of time. ( 20 ) THE prayer made is justified. The Prescribed Authority shall now proceed to decide the application filed by the landlord under section 21 (1) (a) of the Act, expeditiously, preferably within a period of six months from the date a certified copy of the order is filed by either of the parties before the prescribed Authority. Petition Allowed. .