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2009 DIGILAW 302 (GAU)

Damayanti Goswami v. Karuna Das

2009-05-06

P.K.MUSAHARY

body2009
ORDER P.K. Musahary, J. 1. Heard Mr. Rajeswar Sarma, learned Counsel appearing for the petitioners. None appears for the respondents without any steps in spite of notice being served on them. 2. This revision petition is directed against the order dated 5-6-2008 passed by the learned Munsiff No. 3. Kamrup, Guwahati in Title Suit No. 427/2007. The petitioners have been impleaded as defendants in the aforesaid Title Suit. Summons were issued on them from the Court on 6-8-2007, which were received for them by the wife of defendant No. 2. As the petitioners are businessmen, they have to move out side Guwahati frequently and on having come to know about the summons, they appeared in the Court on 24-8-2007 and filed an application praying for extension of time for filing of the written statement and the Court granted the time till 12-9-2007. The petitioners made another application on 12-9-2007 praying for extension of time for filing of the written statement and the same was allowed till 11-10-2007. Again the petitioners as defendants had to file an application on 11-10-2007 for the same purpose. The learned Munsiff allowed the application and fixed 20-11-2007 for filing the written statement. The petitioners accordingly filed the written statement on 20-11-2007 but on the same date the respondents/plaintiffs filed an objection petition. On receipt of the said objection petition; the petitioners/defendants filed a written reply to objection petition on 7-5-2008. Both these objection petition and the reply to the objection petition were taken up for hearing on 5-6-2008 and the learned Munsiff passed the impugned order rejecting the written statement. 3. The learned Munsiff recorded the reasons in the impugned order dated 5-6-2008 as quoted below: From the order dated 11-10-2007, it appears that the summons were served on the defendants on 6-8-2007. However, W.S. was to be filed within 90 days i.e. within 4-11-2007. But the defendants filed W.S. on 20-11-2007 i.e. after the expiry of statutory period. How petition No. 2744/2007 is allowed and the petition is disposed of on contest without cost. W.S. filed by the defendants is not accepted. However, the defendants are at liberty to even examine the P.Ws. Fixed 4-7-2008 for SBPH and evidence on affidavit of P.Ws. 4. I have also perused the order dated 11-10-2007 passed by the learned Munsiff No. 3, Kamrup, Guwahati, which is quoted below: Plaintiff is unrepresented. W.S. filed by the defendants is not accepted. However, the defendants are at liberty to even examine the P.Ws. Fixed 4-7-2008 for SBPH and evidence on affidavit of P.Ws. 4. I have also perused the order dated 11-10-2007 passed by the learned Munsiff No. 3, Kamrup, Guwahati, which is quoted below: Plaintiff is unrepresented. Summon issued to all the defendants has retd. served on 6-8-2007. Seen the pet. No. 2616/2007 filed on their behalf praying for time to submit written statement. Pet. is allowed for the ends of justice. Fix 20-11-2007 for W.S. 5. On reading the aforesaid order, it is clear that the petitioners/defendants were allowed to file the written statement by 20-11-2007. The respondents/plaintiffs did not file any application for vacating the aforesaid order dated 11-10-2007 and without making any application to that effect, the respondents/plaintiffs filed objection petition dated 7-5-2008. The order dated 11-10-2007 passed by the learned Munsiff remained in force, as the same was not vacated. The Court while granting time for filing written statement clearly mentioned that it was done so for the ends of justice. 6. When the Court has passed the aforesaid order dated 5-6-2008 in the interest of justice, I do not find any reason for rejecting the written statement filed by the petitioners/defendants. Admittedly, the learned Munsiff allowed the petitioner/defendant to file the written statement beyond the period of 90 days prescribed under Order 8, Rule 1, CPC. It is the settled position of law that the defendants may be allowed to file the written statement beyond the period prescribed under certain circumstances and the Court is not disempowered under Order 8, Rule 1, CPC to accept in appropriate case, a written statement filed beyond the period of 90 days of the service of summons on the defendants. This was held so by this Court in Sreenivas Basudev v. Vineer Kumar Kothari reported in. The Apex Court also in Kailash v. Nanhku reported in held that the purpose of providing the time schedule for filing the written statement under Order 8, Rule 1, 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. 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. It is also held that though the language of the proviso to Rule 1 of Order 8 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, CPC is not completely taken away. In this regard, reference may also be made to the case of Zolba v. Keshao AIR 2008 SC 2099 , wherein the Apex Court held that the delay in filing the written statement could be accepted even after the expiry of the period mentioned in the proviso to Order 8, Rule 1 of the CPC after considering the delay in exceptionally hard cases. It is further held in the said case that the use of word, "Shall" in Order 8, Rule 1 of the CPC by itself is not conclusive to determine whether the provision is mandatory or directory. The use of word, "Shall" is ordinarily indicative of mandatory nature of the provision but having, regard to the decision in Salem Advocate Bar Association, Tamil Nadu v. Union of India AIR 2005 SC 3353 , the same can be construed as directory. 7. Having heard the learned Counsel for the petitioners and also taking into consideration the fact that the learned Munsiff already allowed the petitioner/defendants to file written statement by 20-11-2008 and the petitioners in fact, filed the written statement as per the time allowed by the Court and also in view of the settled position of law in regard to filing of written statement and the power of the Court to allow the defendants to file the written statement beyond the prescribed period, I find that the impugned order dated 5-6-2008 would not be able to stand the scrutiny of law and it would be liable to be interfered. Accordingly, the same is interfered and quashed. The learned Munsiff No. 3, Kamrup, Guwahati shall accept the written statement filed by the petitioner/defendant and proceed with the proceeding of the case in accordance with law. Petition stands allowed.