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2011 DIGILAW 693 (RAJ)

Onkarmal v. Kishore Kumar

2011-03-31

NARENDRA KUMAR JAIN

body2011
JUDGMENT : Narendra Kumar Jain, J. 1. Heard Learned counsel for the parties. 2. Learned counsel for the respondents has moved an application under Article 226(3) of the Constitution of India for vacation of ex-parte stay order dated 06.08.2010 passed by this Court, whereby further proceedings of civil suit pending in the trial court were stayed. 3. During course of arguments, learned counsel for both the parties submitted that the writ petition itself may be heard and disposed of finally. At the request of learned counsel for the parties, arguments were heard and writ petition is being disposed of finally. 4. Plaintiff's-Respondent No. 1 to 6 filed a suit for cancellation of Registered Sale Deed dated 12.03.2007 in the trial court against the defendant No. 1/petitioner and Defendant No. 2 and 3/Respondent No. 7 and 8. The case was fixed for filing written statement on 17.08.2009, but the same was not filed. Trial court closed the written statement observing that written statement has not been filed despite grant of number of opportunities and a period of 90 days has also been expired. Thereafter, Defendant No. 1/petitioner filed an application in the trial court on 08.03.2010 alongwith written statement to take the same on record. It was mentioned in the application that father of Defendant No. 1/petitioner Jeevan Ram was seriously ill, therefore, he could not file written statement on or before 17.08.2009; His father ultimately died on 26.08.2009. Thereafter, he could not recover himself for some time and could not attend the case, therefore, written statement filed in the case may be taken on record. 5. Application was contested by the plaintiffs stating that opportunity to file written statement was closed after granting six opportunities to the Defendant No. 1, therefore, there is no justified reason for taking the written statement on record now at this stage. 6. Learned trial court vide its order dated 09.07.2010 rejected the application of the petitioner and did not take his written statement on record. Being aggrieved with the said order, the Defendant No. 1 has preferred this writ petition. 7. Submission of learned counsel for the petitioner is that father of the petitioner was seriously ill, therefore, he could not file his written statement on or before 17.08.2009. Being aggrieved with the said order, the Defendant No. 1 has preferred this writ petition. 7. Submission of learned counsel for the petitioner is that father of the petitioner was seriously ill, therefore, he could not file his written statement on or before 17.08.2009. Father of the petitioner ultimately died on 26.08.2009 and he could not recover himself to attend the case and to file written statement in the case. However, after sometime, he prepared his written statement and filed the same in the court alongwith an application on 08.03.2010. He submitted that present suit is a suit for cancellation of Registered Sale Deed dated 12.03.2007 and in case his written statement is not taken on record, then his rights will be prejudiced and he will suffer irreparable loss. So far as delay caused because of non-filing of written statement is concerned, he submitted that the same can be compensated by way of cost to the respondents. 8. Learned counsel for the respondents defended impugned order and submitted that there is no illegality in impugned order, so as to interfere with the same by this court and writ petition deserves to be dismissed. 9. I have considered submissions of learned counsel for the parties and examined impugned order passed by the trial court. 10. The facts of the case, as stated by both the parties and mentioned above, are not in dispute. Opportunity to file written statement was closed by the trial court on 17.08.2009. Father of Defendant No. 1 died on 26.08.2009. Written statement was filed in the trial court alongwith application to take the same on record on 08.03.2010. From impugned order, it appears that from the documents annexed with the application, trial court was satisfied, therefore, it observed that Shri Jeevan Ram, father of Defendant No. 1 was seriously ill and he died on 26.08.2009. However, trial court was of the view that when the matter was listed on 23.01.2010, the defendant received copies of affidavits of plaintiffs witnesses and sought time for their cross-examination and compromise in the case, the father of the Defendant No. 1 died after closing of written statement. Trial court ultimately took a view that reasons given by Defendant No. 1 are not justified, therefore, it rejected the application of the petitioner. Although, after amendment in Civil Procedure Code, a period of 90 days has been prescribed for filing written statement. Trial court ultimately took a view that reasons given by Defendant No. 1 are not justified, therefore, it rejected the application of the petitioner. Although, after amendment in Civil Procedure Code, a period of 90 days has been prescribed for filing written statement. However, provisions of Order 8 Rule 1 Civil Procedure Code were considered by Hon'ble Supreme Court in Kailash v. Nanhku & Ors., reported in 2005 (2) ACJ 72 (S C) : 2005 (2) CCC 532 (SC) : AIR 2005 SC 2441 and Hon'ble Apex Court held that time limit of 90 days, as prescribed by proviso appended to Order 8 Rule I Civil Procedure Code is directory and not mandatory. In exceptional cases, Court may extend time for filing written statement though providing of 30 days and 90 days referred in proviso has expired. The purpose of providing time schedule for filing written statement is to expedite and not to scuttle; hearing. 11. Hon'ble Apex Court further in R.N. Jadi & Brothers & Ors. v. Subhash Chandra, reported in 2007 (3) ACJ 369 (SC) : 2007 (3) CCC 761 (SC) : 2007 (6) SCC 420 , held that proviso to Order 8 Rule 1 Civil Procedure Code, does not take away the power of the court to take written statement on record though filed beyond 90 days. They only cast an obligation on defendant to file written statement within the time provided for. 12. After considering all the facts and circumstances of the case, I am of the view that there was sufficient cause for not filing the written statement in time, the right to file written statement is a valuable right, therefore, ends of justice would meet in case written statement filed by the Defendant No. 1/petitioner is taken on record on payment of cost. 13. Consequently, writ petition is allowed. Impugned order dated 09.07.2010 passed by the trial court is set aside and it is directed that written statement filed by the Defendant No. 1/petitioner Onkar Mal be taken on record on payment of cost of Rs. 3,000/- (Rupees Three Thousands only), which will be paid within a period of one month from today. 13. Consequently, writ petition is allowed. Impugned order dated 09.07.2010 passed by the trial court is set aside and it is directed that written statement filed by the Defendant No. 1/petitioner Onkar Mal be taken on record on payment of cost of Rs. 3,000/- (Rupees Three Thousands only), which will be paid within a period of one month from today. The receipt having paid the amount of cost will be submitted in the Court within the above mentioned period, failing which order passed by the trial court will stand as it is and written statement of Defendant No.1 will not be taken on record. 14. In view of above, there is no need to pass any order on stay application as well as application under Article 226(3) of Constitution of India and both also stand disposed off. Order accordingly.