Research › Search › Judgment

Jharkhand High Court · body

2012 DIGILAW 894 (JHR)

Jugal Kishore Oraon v. Busra Khatoon

2012-07-02

P.P.BHATT

body2012
Judgment Present writ petition has been filed being aggrieved and dissatisfied with the order dated 20.01.2011 (Annexure-2) passed by the learned Civil Judge (Senior Division)-I, Gumla in T.S. No. 24/2010 by which the application for extension of time for filing written statement has been rejected and the petitioner has been debarred from filing his written statement. Petitioner has further prayed for setting aside the order dated 22.10.2011 (Annexure-5) passed in T.S. No. 24/2010 by the learned Civil Judge (Senior Division)-I, Gumla by which the application to recall the order dated 20.01.2011 has been rejected. 2. Heard the learned counsels for the petitioner as well as respondents and perused the papers. 3. Learned counsel for the petitioner submitted that petitioner (original defendant No.2) submitted an application under Order-VIII, Rule-1 of the CPC as well as under Section 151 of the CPC before the court-below by stating the reason, inter alia, that the delay was caused due to non-availability of documents, but the court-below failed to appreciate the reason assigned as well as the judgment cited before the court-below in support of the submissions. 4. As against that, learned counsel for the respondents submitted that application was submitted at a belated stage and therefore, the court-below has rightly rejected the application. Therefore, interference of this Court is not required and the writ petition may be dismissed. 5. Considering the rival submissions and on perusal of the order passed by the court-below, it appears that the application under Order-VIII, Rule-1 of the CPC as well as under Section 151 of the CPC submitted by the present petitioner (original defendant No.2) has been rejected by the court-below. On perusal of the application as well as the order, it appears that the reason/ justification given by the petitioner (original defendant No.2) for the delay caused in filing of written statement appears to be just and reasonable and court-below ought to have considered the said reason in the light of the judgment referred to and relied upon by the learned counsel for the petitioner, in the case of Salem Advocate Bar Association, T.N. versus Union of India, reported in (2005) 6 Supreme Court Cases 344 . Para-20 and 21 of the said judgment are relevant for the purpose of deciding the present case and the same are being reproduced here-in-below: “20. Para-20 and 21 of the said judgment are relevant for the purpose of deciding the present case and the same are being reproduced here-in-below: “20. The use of the word “shall” in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word “shall” is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice. 21. In construing this provision, support can also be had from Order 8 Rule 10 which provides that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the court, the court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to the suit as it thinks fit. In the context of the provision, despite use of the word “shall”, the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if the written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order 8 Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. In construing the provision of Order 8 Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 Order 8, the Court in its discretion would have the power to allow the defendant to file written statement even after expiry of the period of 90 days provided in Order 8 Rule 1. There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The court has wide power to “make such order in relation to the suit as it thinks fit”. Clearly, therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time-limit of 90 days. The discretion of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8 Rule 1.” 6. Another judgment cited by the learned counsel for the petitioner in the case of Shiv Shankar Dey versus Damodar Ram, reported in 2010 (3) JCR 287 (Jhr) is also applicable in the circumstances of the present case. 7. Having regard to the facts and circumstances of the present case, the impugned orders dated 20.01.2011 (Annexure-2) and 22.10.2011 (Annexure-5) are ordered to be set aside. Let the written statement be taken on record. The writ petition is allowed, accordingly.