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2012 DIGILAW 304 (JK)

Brij Lal v. Shankar Dass Gupta

2012-06-02

MOHAMMAD YAQOOB MIR

body2012
1. Suit for perpetual injunction captioned Shanker Dass Gupta vs. Brij Lal is pending before the Court of Munsiff, Katra. Petitioner(defendant) has failed to file the written statement despite having availed numerous opportunities. On 29.11.2011, then on 07.12.2011 and 11.01.2012, there was no representation on behalf of the defendant. Order dated 11.01.2012 is impugned, in terms whereof right to file the written statement has been closed. 2. Petitioner (defendant) has filed an application for setting aside ex-parte proceedings and for extension of time for filing written statement, which has been dismissed vide order dated 21.05.2012. It has been observed that as against order dated 11.01.2012, remedy available is to file revision petition. 3. Since the revisional powers have been curtailed vis-`-vis such like orders in view of the proviso to Section 115 of CPC, so remedy of revision is not available. It is in view of this legal position petitioner has invoked supervisory jurisdiction of this Court under Section 104 of the Constitution of J&K State. 4. On behalf of respondent (plaintiff) Mr. Vikram Singh Advocate has entered appearance being on caveat, as such, caveat Nos.624/2012 and 626/2012 shall stand discharged. He has also produced attested copy of interim orders recorded by trial court from 19.04.2011 to 11.01.2012. Same is taken on record. 5. It is the contention of learned counsel for the respondent (plaintiff) that petitioner (defendant) has failed to avail numerous opportunities, enlargement of time for filing the written statement is totally impermissible in view of Order 8 Rule 1 of CPC read with Rule 10. 6. Considered. 7. Power of revision exercisable under Section 115 of CPC after amendment to the proviso has undergone drastic change i.e. only such orders can be examined in revision which are final in its operation or, order, if would have been in favour of the revisionist would result in termination of the suit proceedings. This position has been clearly settled by the Hon ble Apex Court in the judgment captioned Surya Dev Rai vs. Ram Chander Rai & ors, reported in (2003) 6 SCC 675 , wherein it has also been made clear that supervisory powers of the High Court by amendment in Civil Procedure Code have not been taken away but for exercise of such power an exceptional case has to be set up so as to undo the injustice. 8. 8. Now the question is as to whether orders impugned are such which will result in miscarriage of justice and whether same presents a situation which has trappings of an exceptional case so as to persuade the Court to exercise supervisory powers under Section 104 of the State Constitution read with Article 227 of the Constitution of India. 9. Admittedly suit has been presented on 19.4.2011, defendant has appeared for the first time before the trial court on 31st May, 2011, then on 20th July, 2011 no one has appeared on behalf of the defendant, then on 16.8.2011 defendant has appeared but plaintiff has remained absent. On 20.9.2011 counsel for the defendant had sought time for filing written statement. Then again on 25th October, 2011 time has been sought and granted for filing written statement, same is the position recorded on 14.11.2011. On 29.11.2011 it is recorded that the advocates have suspended the work, no one is present so matter adjourned for 07.12.2011, on the same date later on attorney of the plaintiff is shown to have caused appearance. Then on 07.12.2011 both parties have remained absent as the advocates had suspended work. On 11.01.2012 order has been recorded as under:- L/C for plaintiff is present. Nemo for defendant. Neither the W. S is filed as yet. Case is called again & again. Nobody is present for defendant. Even the period prescribed for filing w.s in view of amended CPC is expired. Thus right to file W. S by the defendant is closed despite the fact that no. of opportunities are granted. L/C for plaintiff is directed to give evidence on affidavits. Put on 31/01/2012 . 10. Defendant subsequently on 15th February, 2012 is shown to have filed an application for setting aside ex-parte proceedings and for extension of time for filing written statement. of opportunities are granted. L/C for plaintiff is directed to give evidence on affidavits. Put on 31/01/2012 . 10. Defendant subsequently on 15th February, 2012 is shown to have filed an application for setting aside ex-parte proceedings and for extension of time for filing written statement. In the order recorded on 21.05.2012, which is also impugned, trial court has noticed that the defendant has projected that in fact it is his counsel who had to appear but has not appeared neither he had informed defendant about progress of the case, on 14th February, 2012 he had gone to the Court to know progress of the case but to his utter surprise it dawned upon him that his counsel had not appeared and on 11th January, 2012 his right of filing written statement has been closed, he was under impression that his case is in safe hands and counsel will take due care and has also claimed that he is in possession of the suit property over which he has constructed residential house. Noticing all the pleas as had been taken trial court has rejected the said application vide order dated 21.05.2012 opining therein that as against order dated 11.01.2012 the defendant has a remedy before revisional forum. 11. The trial court has not appreciated the matter in its right perspective. The order dated 11.01.2012 would clearly indicate that in absence of defendant, his right to file written statement has been closed. What was required to be done has not been done i.e. trial court was required to have recourse to Order XVII Rule 2 of the Code of Civil Procedure which provides that in case parties fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such order as it thinks fit. That would mean either trial court should have adjourned the case or should have proceeded in ex-parte against the defendant as is provided under Order IX of CPC and in ex-parte plaintiff could be asked to lead the evidence. 12. Conjoint reading of Rule 2 and 3 of Order XVII CPC would provide that only course available for the Court was either to adjourn the case or to proceed in the matter in accordance with Order IX. It shall be quite relevant to quote Rule 2 and 3 of Order XVII: 2. 12. Conjoint reading of Rule 2 and 3 of Order XVII CPC would provide that only course available for the Court was either to adjourn the case or to proceed in the matter in accordance with Order IX. It shall be quite relevant to quote Rule 2 and 3 of Order XVII: 2. Procedure if parties fail to appear on day fixed. Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. Explanation. Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party was present. 3. Court may proceed notwithstanding either party fails to produce evidence, etc Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default,- (a) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties are, or any of them is absent, proceed under rule 2. 13. Clear distinction between two rules is that under Rule 2 Court has to proceed in accordance with Order IX or to adjourn the case whereas in terms of Rule 3 if the parties are present but fails to take steps as are required to be taken for progress of the suit, the Court has to proceed to decide the suit forthwith. So marking distinction is relatable to the presence of the parties. In case one of the parties is absent, suit cannot be decided except by having recourse to, in case of plaintiff, by dismissing the suit in default and in case of absence of defendant by proceeding against him in ex-parte or to adjourn the case awaiting appearance of the parties. In case one of the parties is absent, suit cannot be decided except by having recourse to, in case of plaintiff, by dismissing the suit in default and in case of absence of defendant by proceeding against him in ex-parte or to adjourn the case awaiting appearance of the parties. The words employed in Rule 2 or to make such other order as it thinks fit would empower the Court to adjourn the case but not to decide the case, or to close the right of filing written statement, same shall be in-keeping with the object of Rule 2 and Rule 3. Rule 3 provides that when parties are present but have failed to take requisite steps necessary for the progress of the suit, then Court has to proceed to decide the suit forthwith. So Rule 3 enables the Court to proceed ahead and decide the suit, default in taking requisite steps on behalf of the parties notwithstanding. 14. In the instant case though the trial court has recorded that the right of filing written statement is closed but the said order has been passed in absence of the defendant, therefore, in any case such order has to be treated as an order under Rule 2 of Order XVII of CPC, so in-effect it would be an ex-parte order which could be set aside on the basis of application which had been filed by the defendant subject to satisfaction about the sufficient cause for non-appearance. 15. As noticed above, the defendant in the application as rejected had projected sufficient cause for non-appearance, then again the position of interim orders recorded by the trial court, as noticed hereinabove, would suggest that there was good cause for non-appearance of the defendant before the trial Court when order impugned dated 11.1.2012 was passed. 16. It is true that in view of amended CPC, time limit has been fixed for filing written statement but that is directory not mandatory. For extension of time, if a party is able to show exceptional cause which has resulted in not filing written statement within time, then time limit has to be enlarged. 17. 16. It is true that in view of amended CPC, time limit has been fixed for filing written statement but that is directory not mandatory. For extension of time, if a party is able to show exceptional cause which has resulted in not filing written statement within time, then time limit has to be enlarged. 17. Keeping in view the peculiar features of the present case, for advancing cause of justice, exceptional case is made out for exercise of supervisory power under Section 104 of the State Constitution, hence order dated 11.01.2012 as well as order dated 21.5.2012 are set aside. Defendant shall file written statement within a period of one week from the date copy of the order is received by the trial court subject to deposit of Rs.5000(five thousand) as cost before the trial court within same period, payable to the respondent (plaintiff). In case of default, defendant s (petitioner s) right to file written statement shall stand closed. 18. Disposed of as above along with connected CMPs. 19. Copy of the order be send to the trial court forthwith for information.