Research › Search › Judgment

Rajasthan High Court · body

2010 DIGILAW 1173 (RAJ)

Panchu Ram v. Satyanarayan Jat

2010-07-07

MAHESH BHAGWATI

body2010
Hon'ble BHAGWATI, J.—By way of this writ petition, the petitioner has implored to quash and set-aside the orders dated 30th August, 2006 and 26th October, 2006 rendered by Additional District Judge, Kotputli, District Jaipur, whereby the opportunity for filing written-statement was closed and the application under Order VIII Rule 1 of Code of Civil Procedure was dismissed accordingly. 2. Background facts of the case depict that plaintiff-respondent filed a civil suit for damages before the Additional District Judge, Kotputli, Jaipur on the premise that he suffered damages on account of a false FIR having been lodged against him by the petitioner at Police Station, Pragpura. In this suit, Shri Purshottam Bidani, Advocate put his appearance on behalf of respondent No.1 on 22nd May, 2006 and filed his powers accordingly. He gave an undertaking to the Court to file powers on behalf of respondent No. 2 and written-statement on the next date of hearing. The case was adjourned to 30th August, 2006. On 30th August, 2006, learned counsel for the respondents had gone out of headquarter due to some urgent work and one brief holder Advocate appeared for him. Brief holder prayed the learned Court to grant one opportunity to file the written-statement, but the learned Additional District Judge, Kotputli did not grant an opportunity and closed the opportunity of filing the written-statement. Thereafter on 26th October, 2006, the petitioner-defendant filed an application under Order VIII Rule 1 of Civil Procedure Code imploring to permit him to file the written-statement in the interest of justice, but that application was also rejected for the reasons mentioned in the impugned order dated 26th October, the petitioner has filed this writ petition. 3. Heard the learned counsel for the parties and carefully perused the relevant material on record. 4. Learned counsel for the petitioner canvassed that the court granted only one opportunity to file the written-statement and on that date of hearing i.e. on 30th August, 2006, the counsel for the petitioner-defendant had to go out of headquarter on account of some urgent work. No other opportunity was given and on that very day, the opportunity for filing the written-statement was closed. Thereafter again he prayed to permit him to file the written-statement vide application under Order VIII Rule 1 of Code of Civil Procedure, but that prayer was also not allowed. No other opportunity was given and on that very day, the opportunity for filing the written-statement was closed. Thereafter again he prayed to permit him to file the written-statement vide application under Order VIII Rule 1 of Code of Civil Procedure, but that prayer was also not allowed. Learned counsel contended that filing of written-statement was very much essential for conducting the case in a proper way and to seek substantial justice. If the opportunity for filing written-statement is not allowed, a grave injustice would be occasioned to the petitioner-defendant. He further canvassed that the provisions of Order VIII Rule 1 of Civil Procedure Code with regard to filing written-statement are not mandatory, but are directory and the Court was not powerless to permit a written-statement being filed, if the Court required such written-statement to meet the ends of justice. He has cited one judgment of Hon'ble Apex Court pronounced in the case of Kailash vs. Nanhku and others reported in 2005(4) Supreme Court Cases 480 = RLW 2005(3) SC 341 in support thereof. In the end, the learned counsel prayed that in the interest of justice, the writ petition be allowed and the petitioner may be permitted to file the written-statement before the learned trial Court. 5. E Contra, learned counsel for the respondent has defended the impugned orders of the Court below and stated them to be just and proper having been rendered in accordance with the provisions of law. 6. It is true that Order VIII Rule 1 of Civil Procedure Code contemplates filing of written-statement within a period of 30 days from the date of service of summons and if he fails to file the same within the said period of 30 days, he could be allowed to file the same on such other day but not later than ninety days from the date of service of summons. The learned trial Court is found to have closed the opportunity of filing the written-statement on the ground that the defendant had not filed the written-statement within a period of 90 days, but a bare perusal of the order-sheets reveal that after the service of summon on defendant Mr. Purshottam Bidani, Advocate appeared for the first time in the Court on 22nd May, 2006 and on that day the case was adjourned to 30th August, 2006 for filing the written-statement. Purshottam Bidani, Advocate appeared for the first time in the Court on 22nd May, 2006 and on that day the case was adjourned to 30th August, 2006 for filing the written-statement. If the Court was so particular about the mandate of law, why did it give 97 days' time to file the written-statement. When the Court itself had flouted the provisions of law by granting adjournment of 97 days for filing the written-statement, then what made the Court to close the opportunity for filing written-statement on that very day when the counsel for the petitioner had gone out of the headquarter on account of urgent personal work. 7. Learned trial Court is found to have dismissed the application under Order VIII Rule 1 of Civil Procedure Code in view of the judgment of Hon'ble Apex Court pronounced in the case of Smt. Rani Kusum vs. Smt. Kanchan Devi & Others reported in Western Law Cases (SC) Civil 2005 (2) 390 = RLW 2005(4) SC 2244, wherein their Lordships have observed that "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 if it needed to be given for circumstances, which are exceptional, occasioned by reasons beyond the control of defendant and grave injustice would be occasioned if the time was not extended." 8. It is true that the observance of time schedule contemplated by Order VIII Rule 1 CPC is a rule and departure therefrom is an exception made for satisfactory reasons only. 9. Adverting to the facts of the instant case, it is noticed that the Court itself granted 97 days time to file the written-statement, which was a clear departure from the Rule. If the learned trial Court had deviated from the time schedule as contemplated by Order VIII Rule 1 CPC, then the Court could provide one more opportunity to the petitioner-defendant to file the written-statement in the interest of justice. 10. If the learned trial Court had deviated from the time schedule as contemplated by Order VIII Rule 1 CPC, then the Court could provide one more opportunity to the petitioner-defendant to file the written-statement in the interest of justice. 10. The object behind substituting Order VIII Rule 1 of Civil Procedure Code in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and 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. The process of the justice may be speeded up and hurried but the fairness which is a basis element of justice cannot be permitted to be buried. 11. In the case of Kailash vs. Nanhku and others (supra), the Hon'ble Apex Court observed as under: "the provisions spells out a disability on the defendant: a careful reading of the language in which Order 8 Rule 1 has been drafted, shows that it 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. Though the language of the proviso to Rule 1 Order 8 CPC is couched in the negative form, it does not specify any penal consequences flowing from the non-compliance; however, the consequences of non-compliance may be read in by necessary implication. The provision being in the domain of the procedural law and considering the object and purpose behind enacting Rule 1 of Order 8 in the present form and the context in which the provision is placed, it has to be held to be directory and not mandatory. The provision being in the domain of the procedural law and considering the object and purpose behind enacting Rule 1 of Order 8 in the present form and the context in which the provision is placed, it has to be held to be directory and not mandatory. Moreover, under Order 8 Rule 9, in spite of the time limit appointed by Order 8 Rule 1 having expired, the court is not powerless to permit a written statement being filed if the court may require such written statement." The Hon'ble Apex Court has further held that: "however, the fact that Order 8 Rule 1 CPC has been held to be directory may not be misunderstood an nullifying the entire force and impact - the entire life and vigour -of the provision." 12. In the instant case albeit, time schedule contemplated by Order VIII Rule 1 of Civil Procedure Code was granted to the petitioner-defendant for filing the written-statement, but a grave injustice would be occasioned to him if he is not allowed to file the written-statement of his defence. Hence to meet the ends of justice, one last opportunity may be granted to the petitioner-defendant to file the written-statement at the cost of Rs. 1000/-. 13. For the reasons stated above, the writ petition is allowed and one last opportunity is granted to the petitioner-defendant to file the written statement at the cost of Rs. 1000/-. 14. The petitioner is directed to file the written-statement in Civil Suit No. 22/2006 pending before the Additional District Judge, Kotputli on or before 19th July, 2010. If he fails to file the written-statement on or before this date, no further opportunity, whatsoever, shall be granted to him.