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2012 DIGILAW 365 (ORI)

Gayadhar Malik v. Hrushikesha Malik

2012-08-22

M.M.DAS

body2012
JUDGMENT M. M. DAS, J. Even though notice has been validly served on the opp. party – plaintiff, none appears for the said opposite party. 2. The petitioners are the defendants 1 and 2 in C.S. No. 4 of 2009. After their appearance in the suit, they sought for adjournment to file their written statement. Lastly on 20.4.2009, the petitioners when again prayed for an adjournment seeking time to file their written statement, the learned trial court recorded that the said date being the 90th day from the date of service of summons on them, no further time can be granted to the petitioners to file the written statement and rejected the said application. On 9.7.2010, the petitioners filed another application along with the written statement to recall the order dated 20.4.2009 and accept the written statement. The learned trial court hearing the said petition, by the impugned order, finding that the petitioners have not filed any document to substantiate their stand explaining the cause for not filing the written statement within the time prescribed under Order VIII, Rule 1 C.P.C. came to the conclusion that there is no reasonable ground to recall the order dated 20.4.2009 and accept the written statement filed by them. Being aggrieved, the petitioners have preferred the present writ petition. 3. It is submitted by the learned counsel for the petitioners that the defendant no. 1, who was looking after the case, being ill, sought for time on 20.4.2009 which prayer was rejected by the learned trial court and in the subsequent petition, the petitioner no. 1 on affidavit stated that he was ill on 20.4.2009 for which the petitioners could not file their written statement. He further submits that no objection on affidavit was filed to the said petition for acceptance of the written statement by recalling the order dated 20.4.2009. The learned trial court, therefore, has committed an error of law in disbelieving the plea of the petitioners that the petitioner No. 1 was ill on 20.4.2009 for which he could not file the written statement. According to him, the learned trial court should have accepted the written statement as it is well settled in law that for just cause, the court has the power to extend the period for filing of written statement as prescribed under Order VIII, Rule 1 C.P.C. 4. According to him, the learned trial court should have accepted the written statement as it is well settled in law that for just cause, the court has the power to extend the period for filing of written statement as prescribed under Order VIII, Rule 1 C.P.C. 4. Order VIII, Rule 1 C.P.C. underwent an amendment by Act 22 of 2002 and prescribed that the defendant shall present his written statement of his defence within 30 days from the date of service of summons on him. In the proviso to Order VIII, Rule 1 C.P.C., it is prescribed that where defendant fails to file the written statement within thirty days, he shall be allowed to file the same on such other day as may be specified by the court, for reasons to be recorded in writing, but shall not be later than 90 days from the date of service of summons. 5. The question, therefore, arises as to whether the provision of Order VIII, Rule 1C.P.C. is of such nature that it cannot be contended that the said provision has absolutely no elasticity in it and is mandatory in nature and that the court is denuded of its power to grant time beyond ninety days to the defendant to present his written statement of defence even when there is sufficient reason to do so. 6. After the amendment of the above provision in the Code, the matter has been dealt with exhaustively in various judgments of the apex Court. In the case of Kailash v. Nanhku and others, 2005 (I) OLR (SC) 718, the Supreme Court, while dealing with an election dispute under the Representation of Peoples Act, 1951, had the occasion to deal with the provision of Order VIII, Rule 1 C.P.C. Referring to various earlier judgments, the Supreme Court empathetically laid down that the purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1 of C.P.C. is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though the language of the proviso to Rule 1 of Order VIII of CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though the language of the proviso to Rule 1 of Order VIII of CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the Procedural Law, it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by Order VIII, Rule 1 of the CPC is not completely taken away. The Supreme Court further held that though Order VIII, Rule 1 of the C.P.C. is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil causes, which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure there-from would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case. (Emphasis supplied) 7. The proposition that Rules of Procedure are handmaid of justice and cannot take away the residuary power in Judges to act ex debito justitiae, where otherwise it would be wholly inequitable, is by now well founded. 8. (Emphasis supplied) 7. The proposition that Rules of Procedure are handmaid of justice and cannot take away the residuary power in Judges to act ex debito justitiae, where otherwise it would be wholly inequitable, is by now well founded. 8. In this context, the words of Hon’ble Justice Krishna Iyer in the case of Sushil Kumar Sen v. State of Bihar (1975) 1 SCC 774 can be considered to be immortal which are as follows: “The mortality of justice at the hands of law troubles a Judge’s conscience and points an angry interrogation at the law reformer. 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 such as substantive”. 9. Procedural law is always designed to facilitate the dispensation of justice and too technical constructions of such provisions in the procedural law will not leave any room for reasonable elasticity if treated to be mandatory and will prevent the furtherance of justice by frustrating the same. 10. Keeping in view the above well settled principles of interpretation, this Court is of the opinion that the learned trial court should have believed the stand taken by the petitioners for not filing their written statement within 90 days from the date of service of summons on them and should have accepted the written statement filed by them along with the application seeking acceptance of the same, without rejecting the said prayer as has been done in the impugned order, since this Court finds that there was sufficient reasons for the petitioners for not filing their written statement of defence earlier and the learned trial court should have accepted the written statement filed by them, as otherwise, the defendants will be denied the opportunity of participating in the process of justice dispensation in an adversial system and advancement of the cause of justice would be throttled. Thereafter, the learned trial court shall frame issues and proceed to hear and dispose of the suit in accordance with law. The above order is subject to the petitioners – defendants paying a cost of Rs. Thereafter, the learned trial court shall frame issues and proceed to hear and dispose of the suit in accordance with law. The above order is subject to the petitioners – defendants paying a cost of Rs. 500/-(Rupees five hundred only) to the plaintiff before the court below. 11. With the aforesaid observations and direction, the writ petition is disposed of. All pending Misc. Cases also stand disposed of. The interim order passed earlier stands vacated.