Research › Search › Judgment

Orissa High Court · body

2011 DIGILAW 133 (ORI)

Basantilata Behera v. Sudhakar Panigrahi

2011-03-01

B.K.MISRA

body2011
ORDER Heard Learned Counsel for the parties Perused the impugned order at Annexure-4 passed by the Learned Civil Judge (Sr. Divn.), Balasore. A petition has been filed under Order, 9, Rule 7 CPC by the present Petitioner, who was Defendant No.1 in Civil Suit No..225 of 2008-1 for setting aside the said ex parte order passed against' her '& another petition was filed under Order 8 Rule 9 CPC to accept the written statement. But the said prayers were disallowed by the, Learned Court below. The impugned order further shows that for filing additional written statement in view of the amendment of the plaint, the suit was adjourned to 25.1.2010. After hearing Learned Counsel for the parties, I perused the impugned order at Annexure 4 so also perused the petition filed by the present Petitioner under Order 9 Rule 7 CPC who was Defendant No.1 (Annexure-1) It is found from the impugned order at Annexure 4 that the petition under Order 9 Rule 7 was filed on 5.10.2009 along with another petition under Order 8 Rule 9 but those petitions were not entertained then as the present Petitioner as Defendant No.1 had not filed the written statement. It is the assertion of the Petitioner that no notice was served on her & she could only come to know that she has been set ex parte when she contested the Interim Application No. 89 of 2008 arising out of C.S. No. 225 of 2008. The Learned Civil Judge (Sr. Divn.), Balasore disbelieved the case of the Petitioner that she had no knowledge about the suit as no notice was served on her & it is the finding of the Court below that only with an oblique motive of delaying disposal of the suit & in order to harass the Plaintiff, the Petitioner knowingly did not appear in the suit & contested the same by filing the written statement. Order 8 Rule 1 after the amendment casts obligation on the Defendant to file the written statement within 30 days from the date of service of summons on him & within the extended time i.e. within 90 days. The provision does not deal with the power of the Court & 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. The provision does not deal with the power of the Court & 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 Defendant adopting dilatory tactics, delaying the disposal of cases, causing inconvenience to the Plaintiffs & the Petitioners approaching the Court for quick relief & also the serious inconvenience of the Court faced with frequent prayers for adjournments. The object is to expedite the hearing & not to scuttle the same. While justice delayed may amount to denied, justice hurried may in some cases amount to justice buried. It is trite that the rules of procedure are the handmaids of justice. The language employed by the draftsman of procedural law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express & specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice. In the above regard, we may profitably place reliance in a Judgment of the Apex Court as reported in 2009 (I) CLR (SC) 388, Sambhaji & Ors. v. Gangabai & Ors. The Petitioner in this case is a rustic woman & she claims that she has been deserted by her husband & living in the house of her parents. Thus, by keeping in mind the aforesaid well established position of law that in an adversarial system no party should ordinarily be denied the opportunity of participating in the process of justice dispensation, I am of the humble view that the Learned Court below took a hard view in the matter especially when the suit is not that old as it is filed in "the year, 2008. Learned Counsel for the Opp. Parties contended that they have no objection if the impugned order at Annexure-4 is quashed subject to payment of cost. Learned Counsel for the Opp. Parties contended that they have no objection if the impugned order at Annexure-4 is quashed subject to payment of cost. In the aforesaid premises, the impugned order at Annexure-4 is quashed. Since the written statement was already filed by the present Petitioner in the Court below, the ex parte order passed against the present Defendant is set aside & the Learned Court below is directed to bring it to the record & allow the Petitioner to contest the suit subject to payment of cost' of Rs. 500 (Rupees five hundred) to the Opp. Parties (Plaintiffs). Accordingly, the Writ Petition stands allowed. Writ Petition allowed.