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2013 DIGILAW 107 (ORI)

Balaram Dixit v. Tadit Kumar Rout

2013-04-17

S.K.MISHRA

body2013
Judgment S.K. Mishra, J. In this writ petition, the petitioners, who are defendants in Civil Suit No. 650 of 2011, assail the order passed by the learned Civil Judge (Senior Division), Ist Court, Cuttack rejecting their application under Order VIII, Rule 9 of the Code of Civil Procedure, 1908, hereinafter referred as the ‘Code’ for brevity, to accept the written statement –cum-counter claim filed by the defendants. 2. The defendants on 13.09.2012 filed their written statement-cum-counter claim along with a petition to accept the same. The defendants contended that the statutory period prescribed under Order VIII, Rule 1 of the Code had expired, but the defendants were not yet set ex parte. However, the defendants were precluded from filing their written statement and the case was posted for hearing. They further contended that due to bona fide reasons they could not file their written statement in time. It is the case of the petitioner that both the parties belong to same locality and there was possibility of mutual settlement at the intervention of Sahi Panchayat, for which defendants were advised not to file their written statement. But such possibility of mutual settlement no more subsists due to high handed attitude of plaintiff. They have also stated that hearing of suit not yet commenced, so no prejudice would be caused to the plaintiff if the time period for filing of written statement is extended and the written statement is accepted. On the other hand, there will be failure of justice, if the matter is not properly contested by both the parties and the defendants are not allowed to file their written statement. It is further contended that unless the written statement is accepted, they will suffer irreparable loss and injury which cannot be compensated in any manner. The defendants also stated that there has been no deliberate laches or negligence on their part. On the above averments the defendants prayed to accept their written statement cum counter claim and allow them to contest the suit. 3. The plaintiff-opposite party filed his objection challenging the maintainability of petition filed by the defendants. The plaintiff specifically stated that pursuant to the summons, the defendants entered appearance on 26.09.2011 by executing Vakalatnama and the matter was adjourned to 03.11.2011 for filing of written statement. 3. The plaintiff-opposite party filed his objection challenging the maintainability of petition filed by the defendants. The plaintiff specifically stated that pursuant to the summons, the defendants entered appearance on 26.09.2011 by executing Vakalatnama and the matter was adjourned to 03.11.2011 for filing of written statement. On 03.11.2011, 16.01.2012 and 17.03.2012, time was allowed on the prayer of defendants to file their written statement and the case was posted on 07.05.2012 for filing of written statement subject to period of limitation. In spite of specific order, the defendants did not file any written statement and again filed a petition for time to file written statement on 07.05.2012, which was rejected and the defendants were precluded to file written statement and the case was posted on 13.09.2012 for hearing of suit. On 13.09.2012, the defendants have filed their written statement cum counter claim along with petition under Order VIII, Rule 9 of the Code for acceptance of the written statement. It is also stated that on various dates, the defendants prayed for time for arranging documents for preparation of written statement, but in the petition for acceptance of the written statement, they have stated that they could not file the written statement within the time as there was possibility of mutual settlement of the parties. The plaintiff also submitted that as per Order VIII, Rule 1 of the Code, the defendants should have filed their written statement within 30 days from the date of receipt of summons and where the defendants failed to file written statement within the period of 30 days, they may be allowed to file the same on such other day as would be specified by the Court for reasons to be recorded in writing, but the same shall not be later than 90 days from the date of receipt of summon. The plaintiff further stated that in the present case, the defendants appeared on 26.09.2011 and after lapse of one year i.e. on 13.09.2012, they filed written statement along with the petition without any other petition for condonation of delay. The plaintiff also stated that the provision under Order VIII, Rule 9 of the Code is not applicable to the fact of the present case and the averments of the petition are absolutely false. On such pleading, the plaintiff submitted to reject the petition filed by the defendants. 4. The plaintiff also stated that the provision under Order VIII, Rule 9 of the Code is not applicable to the fact of the present case and the averments of the petition are absolutely false. On such pleading, the plaintiff submitted to reject the petition filed by the defendants. 4. After hearing the parties and considering the materials on record, learned Civil Judge (Senior Division), Ist Court, Cuttack rejected the petition, inter alia, holding that the inordinate delay of eleven months after appearance of defendants for filing of their written statement has not been explained satisfactorily. It is further noted by the learned Civil Judge (Senior Division) that the ground stated in the time petitions filed on various dates and the ground stated in the petition under Order VIII, Rule 9 of the Code are contradictory. Such order of rejection has been assailed in this writ petition. 5. Order VIII, Rule 1 of the Code provides for filing of written statement by the defendants, which reads as follows : “1. Written statement – The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence : Provided that where the defendant fails to file the written statement within the said period of 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 which shall not be later than ninety days from the date of service of summons. “ Order VIII, Rule 9 of the Code provides for subsequent pleadings, which reads as follows: “9. Subsequent pleadings – No pleading subsequent to the written statement of a defendant other than by way of defence to set off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.” On a simple reading of the provision, it is clear that an application filed under Order VIII, Rule 9 of the Code is not appropriate in this case, because the petitioner has not filed any written statement and therefore, there is no question of filing subsequent pleadings. 6. 6. However, the nomenclature of the petition filed by the litigant should not be taken into consideration, if it is held that the petitioners are entitled to the relief claimed. It has to be examined, whether the petitioners are entitled to file the written statement/counter claim in the suit beyond the time period prescribed under Order VIII, Rule 1 of the Code. Learned counsel for the opposite party has relied upon the reported case of Mohammad Yusuf v. Faij Mohammad and others, (2009) 3 SCC 513 , wherein the Supreme Court took into consideration the reported case of Kailash v. Nanhku and others, (2005) 4 SCC 480 and M/s. R.N. Jadi & brothers and others v. Subhash Chandra, (2007) 6 SCC 420 and held that in the facts of the case the defendants may be permitted to file written statement after expiry of period of ninety days only on exceptional situations. 7. In the case of Kailash v. Nanhku and others (supra), a Three-Judge Bench of the Supreme Court considered the impact of Order VIII, Rule 1 of the Code and held that all the rules of procedure are 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 the Code 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. The Supreme Court further held that 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. 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. The aforesaid case is taken note of by the Supreme Court in M/s. R.N. Jadi & brothers and others v. Subhash Chandra (supra), wherein the Supreme Court has held that the Order VIII, Rule 1 of the Code 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. The Supreme Court further held that the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Substituted Order VIII, Rule 1 intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the plaintiffs and 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. The aforesaid two cases have been taken note of by this Court in Smt. Sarbati Devi Goinka v. Durga Prasad Agarwal, 2009 (I) OLR 48 ; wherein the delay in filing of a written statement was condoned and the written statement has been accepted. 8. Coming to the case in hand, it is seen that the main ground on which the opposite party resisted the application of the petitioners is that the defendant has filed time petitions on several occasions indicating that they need adjournment because of the fact that they were collecting certain documents for filing the written statement. However, in the petition to accept the written statement, they have stated that there was a chance of settlement between the parties at the behest of the Sahi Panchayat. There is an apparent contradiction. However, in the petition to accept the written statement, they have stated that there was a chance of settlement between the parties at the behest of the Sahi Panchayat. There is an apparent contradiction. Learned Civil Judge (Senior Division) has rejected the application of the defendants-petitioners on such facts. However, the fact remains that the time petitions do not contain verification of the parties. Time petitions are filed by the Advocates without signature of the parties. It is also well known that petitions for adjournment are most often drafted/prepared by junior associates of the conducting counsel. Sometimes, it is written by the Advocates’ clerks. Therefore, the same cannot be taken into consideration to hold that the party himself has instructed the lawyer to file a petition for time on the ground stated therein. On the other hand, the petition filed for acceptance of the written statement is supported by an affidavit sworn by a party. Thus, the grounds submitted or pleaded in a petition supported by an affidavit of the party have to be accepted as the version of the party or the litigant and merely because a petition for time does not reflect the same ground it cannot be rejected. It will cause injustice to the party. 9. In that view of the matter, this Court comes to the conclusion that approach adopted by the learned Civil Judge (Senior Division) was erroneous. This Court however held that the petition filed by the defendants that there was talk of compromise between the parties, is a good ground for extending time beyond prescribed limit by filing written statement. Hence, the writ petition succeeds. The petition filed by the defendants-petitioners to accept the written statement is allowed, subject to payment of cost of Rs.1,000/-(Rupees one thousand) by 6th May, 2013 before the court below. The parties are directed to appear before the Court on 6th May, 2013. The Court of original jurisdiction shall accept the written statement-cum-counter claim filed by the defendants-petitioners. With the aforesaid observation, the writ petition is allowed. Petition allowed.