Research › Search › Judgment

Orissa High Court · body

2011 DIGILAW 434 (ORI)

Lokanath Sahoo v. Niranjan Sahoo

2011-08-16

B.K.NAYAK

body2011
ORDER Heard Learned Counsel for the parties. In a suit for specific performance of contract for sale, the Petitioner-Defendant having not filed his written statement within the time limited under Order 8 Rule 1 C.P.C. he was debarred from filing his written statement and his subsequent application for acceptance of written statement having been rejected by the impugned order, the present Writ Petition has been filed. The ground of rejection of the petition filed by the Defendant Petitioner is that the Defendant was debarred from filing written statement on 22.6.2010 and that the petition was filed after lapse of one year from that date. The suit is one for specific performance of contract for sale of land on the ground that the Defendant-agreed to sale the land for a consideration of Rs. 5,00,000 and received part consideration. In a suit of such nature merely allowing the Defendant to participate in the hearing of the suit by way of cross-examining the Plaintiffs witnesses without having his own defence & leading evidence in support thereof would be a great hardship & injustice to the Defendant. The Apex Court in the case reported in 101 (2006) CLT 464 (SC) (Shaikh Salim Haji Abdul Khayumsab v. Kumar & Ors.), held as follows: 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 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. 15. 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. 15. It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order 8 is circumscribed by the words "shall not be later than ninety days" but the consequences flowing from non-extension of time are not specifically provided for though they may be read by necessary implication. Merely because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The Courts, when called upon to interpret the nature of the provision, may, keeping in the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form. Even though the Defendant failed to file the written statement within the time related under Order 8 Rule 1 C.P.C. and that the Plaintiff has for is affidavit evidence, hardship of the Plaintiff can be mitigated imposition of cost on the Defendant. In the circumstances, I allow, the Writ Petition and set aside the impugned order passed by the Learned Trial Court and direct that the Defendant's written statement be accepted subject to payment of a cost of Rs. 1000 (Rupees one thousand) by the Defendant to the Plaintiff within three weeks from today. The Writ Petition is disposed of accordingly. In view of disposal of the Writ Petition Misc. Case No. 12452 of 2011 stands disposed of. Writ Petition disposed.