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2010 DIGILAW 501 (GAU)

Hemamani Talukdar v. Akshendra Kalita

2010-07-27

UTPALENDU BIKAS SAHA

body2010
JUDGMENT U.B. Saha, J. 1. The instant revision petition is filed by Smt. Hemamani Talukdar for setting aside the order dated 9.3.2010 in TS 12/2009 passed by the learned Munsiff, Bajali, Pathsala wherein prayer for filing the written statement after two days of the statutory period prescribed under order VIII, Rule 1, was rejected. 2. Heard Mr. B.N. Sarma, learned Counsel for the Petitioner as well as Mr. H. Kalita, learned Counsel for the Respondent. 3. The instant petition is listed today for admission hearing. As agreed to by the learned Counsel for the parties and considering the nature of the impugned order, the instant petition is taken up for disposal at this stage. 4. Brief facts needed to be discussed for disposal of the instant revision petition are as follows: Respondent-opposite party filed a suit against the Defendant, Petitioner herein, before the learned Munsiff, Bajali, Pathsala for a declaration that the Defendant-Petitioner is not the legitimate wife of the Respondent-Plaintiff and also for cancellation of the deed of marriage. The said suit has been registered as TS 12/2009. Upon receipt of the notice, Petitioner herein filed an application through her father before the learned trial court for allowing her time to file the written statement as she was suffering from illness at that relevant time. The learned trial court allowed the prayer for time and fixed the matter on 22.12.2009 for filing of written statement. On that date also the Petitioner could not file the written statement as she failed to collect certain necessary documents for preparation of her written statement. More so, learned Presiding Officer of the trial court was on leave on that date. Accordingly, 25.1.2010 was fixed for necessary order and on that date, as the Petitioner could not file the written statement; next date for filing the written statement was fixed on 20.2.2010. The Petitioner again failed to file the written statement on that date due to engagement of a new counsel by her. The Petitioner, through her newly engaged counsel again prayed for time for filing the written statement and the said application was numbered as Petition No. 34/2010 which was taken up for hearing by the learned trial court on 9.3.2010. The Petitioner again failed to file the written statement on that date due to engagement of a new counsel by her. The Petitioner, through her newly engaged counsel again prayed for time for filing the written statement and the said application was numbered as Petition No. 34/2010 which was taken up for hearing by the learned trial court on 9.3.2010. After hearing both the parties the learned trial court rejected the prayer for filing of written statement on the ground that by this time the statutory period of 90 days, as prescribed under order VIII, Rule 1, has expired. It is also stated in the said order that changing of advocate is not an exceptional ground to allow the prayer for filing of written statement. Being aggrieved by the said order of rejection the Petitioner preferred the instant revision petition. 5. This Court on 24.5.2010 issued notice upon the Respondents and passed an interim order staying the further proceedings of the aforesaid title suit. 6. The Respondent after receipt of the notice though appeared but did not file any affidavit. 7. Mr. Sarma, at the time of assailing the impugned order would contend that the Respondent-husband of the Petitioner filed the suit in question as a Plaintiff though for a declaration that the Petitioner is not the legitimate wife and for cancellation of the deed of marriage but actually by way of filing the said suit he intended to divorce the Petitioner. Therefore, the learned trial court ought to have allowed the time to file the written statement even after the expiry of the statutory period as in the said suit the Respondent-husband of the Petitioner raised serious question of matrimonial relationship taking advantage of her family background that she is the daughter of a daily labour. 8. He again contended that the learned trial court failed to consider the true object of order VIII, Rule 1, of the Code of Civil Procedure ('Code'). According to him, the word 'shall' used in order VIII, Rule 1, by itself is not conclusive to determine whether the provision is mandatory or directory. Before coming to the conclusion regarding the word 'shall' the learned trial court ought to have ascertained the object and use of such a word by the Legislature. The use of the word 'shall' cannot be always considered to be mandatory. Before coming to the conclusion regarding the word 'shall' the learned trial court ought to have ascertained the object and use of such a word by the Legislature. The use of the word 'shall' cannot be always considered to be mandatory. Sometimes, it is also directive in nature and so far order VIII, Rule 1, is concerned the word 'shall' has to be considered as directory being the same is relating to procedural, not-substantive one. In the instant case the present Petitioner filed the application for time to file the written statement just after two days of expiry of the statutory period. Therefore, the learned trial court failed to discharge the duties cast upon it while rejecting the prayer for time as it is the duty of the court to cause justice and not to defeat the same. 9. In support of his aforesaid contention he placed reliance on a decision of the Apex Court in the case on Salem Advocate Bar Association. T.N. v. Union of India (2005) 6 SCC 344 . He also placed reliance on the decisions of this Court in Dalia Ghose v. Jayanta Ghose 2006 (1) GLT 678, Awadh Kumar Yadav and Ors. v. Dhani Ram Sahu 2007 (3) GLT 635, and Damayanti Goswami and Ors. v. Kumar Das and Ors. 2009 (4) GLT 757. 10. He further contended that the ground for rejection as stated by the learned trial court in the impugned order is without any reason and on that count also the same is liable to be set aside. 11. Per contra, Mr. Kalita while supporting the impugned order would contend that the learned trial court has provided time again and again to the Petitioner for filing her written statement but she could not file her written statement and the reasons for non-filing of the written statement is also not explained properly. He also contended that the impugned order is a well-reasoned one and no interference is called for. He further contended that the Petitioner by way of filing application, one after another, only tried to delay the proceeding pending before the learned trial court. 12. For proper appreciation of the submission of the learned Counsel for the parties, it would be proper for this Court to examine the provisions of order VIII, Rule 1, as it stands now, which is reproduced hereinunder: 1. 12. For proper appreciation of the submission of the learned Counsel for the parties, it would be proper for this Court to examine the provisions of order VIII, Rule 1, as it stands now, which is reproduced hereinunder: 1. 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. 13. There is no doubt that the Legislature by incorporating proviso in the Rule prescribed limited period of 90 days for filing of written statement but the power of the court for accepting the same after 90 days is not totally prohibited where the Defendant in a case can explain the reasons for such delay in filing the written statement. Written Statement, being pleading, not petition or application, according to this Court, there is no necessity to take aid of Section 5 of the Limitation Act for extension of statutory period as prescribed in proviso to order VIII, Rule 1, for filing written statement. 14. In Kailash v. Nanhku and Ors. AIR 2005 SCW 2346 the Apex Court while deciding an appeal relating to election petition considered a question, inter alia. Whether time limit of 90 days as prescribed by the proviso appended in order VIII, Rule 1 of the Code of Civil Procedure is mandatory or directory in nature? While deciding the aforesaid question of time limit their lordships also considered the object of the aforesaid provision of the Code and stated, inter alia, a careful reading of the language of order VIII, Rule 1, 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 and 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 written statement on record though filed beyond the time as provided for. Not only that, it is also stated that the nature of the provisions contained in order VIII, Rule 1, is procedural and the same is not a part of the substantive law. The object behind substituting order VIII, Rule 1, 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 justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried. According to the Apex Court, all the rules or procedures are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. It is also noted that though the power of the court under the proviso appended Rule 1 of order VIII, is circumscribed by the words "shall not be later than 90 days" but the consequences flowing from non-extension of time are not specifically provided though they may be read by necessary implication. Merely, because a provision of law is couched in a negative language mandatory character, the same is not without exceptions. The courts when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form. 15. It is further noted that the provision spells out 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 order VIII, Rule 1, of the Code of Civil Procedure is couched in the 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. Though the, language of the proviso to order VIII, Rule 1, of the Code of Civil Procedure is couched in the 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 to the court to extend time for filing the written statement beyond the time schedule provided by order VIII, Rule 1of the Code of Civil Procedure is not completely taken away though order VIII, Rule 1, of the Code of Civil Procedure is a part of the Procedural Law. 16. In Smt. Rani Kusum v. Smt. Kanchan Devi and Ors. (2005) 5 SCC 705 their Lordships while considering the provisions of order VIII, Rule 1, of the Code also took note of the legislative intention in a procedural enactment and observed as follows: 13. No person has a vested right in a course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. [See Blyth v. Blyth (1966) (1) All. ER 524(HL)]. A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed (See Shreerath and Anr. v. Rahesh and Ors. AIR 1988 SC 1827). 14. Processual law is not be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. 17. In Salem Advocate Bar Association. T.N. (supra) as relied upon by the learned Counsel for the Petitioner, the Apex Court again considered the purpose of amending order VIII, Rule 1, of the Code by the Legislature and using the word "shall" in the said provision and stated, inter alia, "the use of the word "shall" in order VIII, Rule 1, by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word "shall" is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules or procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be referred. The rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice". It is also stated by the Apex Court, inter alia, "In the context or the provision, despite use of the word 'shall', the court has been given the discretion to pronounce or not to pronounce the judgment against the Defendant even if the written statement is not filed and instead to pass such order as it may think fit in relation to the suit." 18. In Zolba v. Keshao AIR 2008 SC 2099 taking note of Salem Advocate Bar Association T.N. (supra) the Apex Court also 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 VIII, Rule 1, of the Code of Civil Procedure after considering the delay in exceptionally hard cases". It is further held that, "in the said case that the use of word, 'shall' in order VIII, Rule 1, Code of Civil Procedure by itself is not conclusive to determine whether the provision is mandatory or directory". It is also noted that, "the use of '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". 19. This Court in the case of Dalia Ghose (supra) and Awadh Kumar Yadav and Ors. (supra) and Damayanti Goswami and Ors. 19. This Court in the case of Dalia Ghose (supra) and Awadh Kumar Yadav and Ors. (supra) and Damayanti Goswami and Ors. (supra) following the aforesaid principle laid down by the Apex Court, also held that court can permit a Defendant to file a written statement even after the expiry of the upper limit of 90 days prescribed by the Legislature in order VIII, Rule 1, in exceptional cases. 20. Upon examination of the aforesaid law reports it can be easily said that right of filing written statement is one of the most valuable right of a party to contest the suit and, therefore, in the interest of justice time can be granted for filing written statement by the Defendant even after 90 days in exceptional cases where the Defendant fails to submit the written statement within the stipulated period for a cause which is not within the control of the Defendant. This Court is of further opinion that a court is empowered to extend the time even in exercise of its powers vested under Sections 148 and 151 of the Code. 21. It appears from the record that the suit is filed by the husband of the Petitioner as Plaintiff for declaration that the Defendant-Petitioner is not the legitimate wife of the Plaintiff-Respondent and also for cancellation of the deed of marriage only to deprive the Petitioner of her lawful right as a wife. 22. In a case of matrimonial dispute when a helpless woman, being wife, prayed for time for filing the written statement on the ground that she engaged a new counsel for conducting her case and due to that she was not in a position to file her written statement within the statutory period, the court should consider the said prayer with some human touch, particularly when the said woman is living in a rural area having no knowledge about the statutory provisions as prescribed by the Legislature. 23. The litigants who are residing in the rural area having no knowledge about the legal provisions have to depend on their counsel. Therefore, it cannot be said that engagement of a new counsel is not an exceptional ground to allow the prayer for written statement. 24. In the instant case, the present Petitioner, who is the daughter of a daily labour, as contended by Mr. Therefore, it cannot be said that engagement of a new counsel is not an exceptional ground to allow the prayer for written statement. 24. In the instant case, the present Petitioner, who is the daughter of a daily labour, as contended by Mr. Sarma, filed the application praying for time to file the written statement just after two days of expiry of the statutory period of 90 days. Therefore, according to this Court, the learned trial court should have allowed the prayer for time after considering the grounds as stated in the petition. This Court is of the further opinion that the reasons for non-filing of the written statement as stated by the Petitioner are well explained. Therefore, the learned trial court should have allowed her Petitioner instead of rejecting the same. 25. In view of the above facts and circumstances, it would be proper for this Court to quash the impugned order dated 9.3.2010 in TS 12/2009 passed by the learned Munsiff, Bajali, Pathsala wherein the prayer for time to file the written statement has been rejected and also to allow the Petitioner to file her written statement for contesting the suit. 26. Accordingly, the said order dated 9.3.2010 rejecting the prayer for time to file the written statement is hereby quashed. The Petitioner is allowed to file the written statement within a period of three weeks from today to contest the suit from which the present revision petition has arisen. 27. In the result this Civil Revision Petition stands allowed. No order as to costs. Petition allowed.