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2011 DIGILAW 471 (AP)

Dugge Venkataiah v. Bellamkonda Meri Dhanamma

2011-06-28

C.V.NAGARJUNA REDDY

body2011
Judgment : 1. This civil revision petition arises out of order, dated 18.02.2011, in I.A.No.728 of 2010 in O.S.No.137 of 2010 on the file of the learned Principal Junior Civil Judge, Miryalaguda. 2. The petitioners are the defendants in the suit filed by the respondent for perpetual injunction. The suit summons were served on the petitioners on 31.07.2010. The petitioners filed a detailed counter affidavit in the IA filed by the respondent for temporary injunction on 06.08.2010. Even though the petitioners were required to file the written statement within 90 days of service of summons as envisaged in Order VIII Rule 1 of CPC, they have failed to file the written statement within the stipulated time and as such, their right to file the written statement was forfeited on 21.12.2010. Therefore, the petitioners filed I.A.No.728 of 2010 under Section 151 CPC to receive the written statement. The trial Court on considering the rival pleas of the parties rejected the said application by the order under revision. 3. A perusal of the impugned order shows that the trial Court has observed that the reasons put forth by the petitioners, namely, that petitioner No.1 fell ill due to jaundice in the 2nd week of November, 2010 and petitioner No.2 joined as teacher on 04.11.2010, are not supported by any documentary evidence. The trial Court also observed that the petitioners did not assign any reason or cause for non-submission of the written statement prior to the month of November or at least till 21.12.2010. 4. Sri P.Prabhakar Rao, learned counsel for the petitioners, stated that even though Order VIII Rule 1 CPC is couched in mandatory terms, the Supreme Court in a catena of judgments held that the said provision is procedural and not substantive in nature and that the stipulation of filing written statement within 90 days contained in the said provision only works as a constraint on the defendant and that in appropriate cases, this provision would not limit or curtail the power of the civil Court to extend time, if proper explanation is offered for non-filing of written statement within stipulated time. In support of his submission, the learned counsel placed reliance on the judgment of the Supreme Court inR.N.Jadi& Brothers and others v. Subhashchandra (2007) 6 SCC 420 . 5. In support of his submission, the learned counsel placed reliance on the judgment of the Supreme Court inR.N.Jadi& Brothers and others v. Subhashchandra (2007) 6 SCC 420 . 5. Sri R.Radha Krishna Reddy, learned counsel for the respondent, opposed the above contention and stated that even if Order VIII Order 1 CPC is construed in the manner as pleaded by the learned counsel for the petitioners, the trial Court has given categorical finding that the petitioners failed to offer satisfactory explanation for accepting the written statement beyond the prescribed period. 6. I have given my earnest consideration to the respective submissions of the learned counsel for the parties. 7. As rightly pointed out by the learned counsel for the petitioners, the Supreme Court in R.N.Jadi& Brothers (supra), while following the earlier judgments in Kailashv. Nanhku (2005) 4 SCC 480 , RaniKusum v. Kanchan Devi (2005) 6 SCC 705 , and Sk.SalimHaji Abdul Khayumsab v. Kumar (2006) 1 SCC 46 inter alia held as under: “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 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. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried. 8. All the rules of procedure 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. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried. 8. All the rules of procedure 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. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and 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. 9. The mortality of justice at the hands of law troubles a judge’s conscience and points an angry interrogation at the law reformer. 10. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence, processual, as much as substantive. (See Sushil Kumar Sen v. State of Bihar [ (1975) 1 SCC 774 ]). 11. No person has a vested right in any 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 AC 643]). 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 Shreenath v. Rajesh [ (1998) 4 SCC 543 ]. 12. Processuallaw is not to 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. 13. (See Shreenath v. Rajesh [ (1998) 4 SCC 543 ]. 12. Processuallaw is not to 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. 13. 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 view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form.” 14. In the light of the ratio laid down in the above-noted judgment, I find merit in the submission of the learned counsel for the petitioners. 15. As regards the submission of the learned counsel for the respondent that the petitioners failed to offer sufficient explanation, the learned counsel for the petitioners fairly conceded that the petitioners failed to take proper care to file material in support of their plea of petitioner No.1 suffering from jaundice and petitioner No.2 being appointed as teacher. He however submitted that as forfeiture of right to file written statement works serious hardship to the petitioners, they may be put on reasonable terms. 16. Having carefully considered this submission of the learned counsel for the petitioners, I am of the view that forfeiture of the petitioners’ right to file written statement would be too harsh which works serious hardship to their interests. After all the intendment of law is to adjudicate the dispute on merits rather than by default. I may however hasten to add that this principle cannot be applied to cases where there is complete lack of diligence on the part of the party in pursuing the litigation. After all the intendment of law is to adjudicate the dispute on merits rather than by default. I may however hasten to add that this principle cannot be applied to cases where there is complete lack of diligence on the part of the party in pursuing the litigation. This is not a case where the petitioners can be accused of being completely negligent and failed to offer explanation, but is one where the trial Court was not satisfied with the explanation offered by them.In these circumstances, I am of the opinion that interests of justice would be met if the trial Court is directed to receive the written statement already offered to be filed subject to the petitioners paying a sum of Rs.5,000/-to the respondent, within a period of two weeks from today. It is made clear that if the costs are not paid, the order under revision will stand revived. 17. Subject to the above directions, the civil revision petition is allowed. 18. As a sequel to disposal of the civil revision petition, interim order, dated 19.04.2011, shall stand vacated and C.R.P.M.P.No.2119 of 2011 is disposed of as infructuous.