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2013 DIGILAW 2212 (ALL)

MUNESHRA DEVI v. CHANDRAWATI DEVI @ CHANARA DEVI

2013-09-04

RAN VIJAI SINGH

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JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri V.Singh alongwith Sri A.B.Maurya, learned counsel for the petitioners. On 12.8.2013, following order was passed by this Court. “Through this writ petition, the petitioners have prayed for issuing a writ of certiorari quashing the orders dated 13.2.2013 and 1.2.2013 passed by the District Judge, Varanasi and Prescribed Authority/Additional Civil Judge (S.D.), Varanasi respectively. vide order dated 1.2.2013, the petitioners’ application seeking adjournment for filing written statement has been rejected, whereas by the subsequent order dated 13.2.2013, the petitioners’ revision challenging the order dated 1.2.2013 has been dismissed by the learned District Judge, holding it as not maintainable. Heard Sri Virendra Singh, learned counsel for the petitioners. It appears, an impleadment application was filed by the other side for impleading the present petitioners in case No. 2 of 1997 (Smt. Chandrawati v. Rajendra Prasad) pending before the 4th Additional Judge (S.D.), Varanasi. The said application was allowed on 30.7.2010 where after, the present petitioner was impleaded as opposite party No. 4 and for the first time, after service of notice, she appeared on 20.12.2012, on which date some additional papers were supplied to the petitioner No. 1 and the date was fixed for 10.1.2013. On 10.1.2013, an adjournment was sought by the petitioner No. 1, which was accepted after imposing cost of Rs. 100/- with the rider that in case the written statement is not filed upto 1.2.2013, the opportunity of filing written statement will cease. On 1.2.2013, another application was filed by the petitioner (the opposite party No. 4). The said application was rejected taking note of the facts that earlier on many occasions, i.e., on 4.1.2012, 19.1.2012, 16.2.2012, 21.2.2012, 18.8.2012, 4.10.2012, 1.12.2012, 10.1.2012, adjournments have already been sought and the case, being very old one, no further adjournment shall be granted. The application of the applicant, seeking time to file written statement was rejected by the learned Prescribed Authority on the said date. Aggrieved by that order, the petitioner No. 1 (herein) has filed revision No. 47 of 2013, which has been dismissed by the learned District Judge, holding that the revision is not maintainable being against the interlocutory order. Learned counsel for the petitioners submits that in view of Rule 1 of Order VIII of the Code of Civil Procedure, the written statement can be filed within 90 days from the date of service of summons. Learned counsel for the petitioners submits that in view of Rule 1 of Order VIII of the Code of Civil Procedure, the written statement can be filed within 90 days from the date of service of summons. In his submissions, since the petitioner No. 1 has appeared before the Court on 20.12.2012, therefore, she could file written statement till 19.3.2013. Therefore, the learned Judge has erred in rejecting the petitioner’s application seeking adjournment for granting time for filing written statement. He has also submitted that the learned Judge had noted the dates and the adjournments sought by the other petitioners, which is not related to the petitioner No. 1 as the petitioner No. 1, for the first time, has appeared before the Court on 20.12.2012 and has sought adjournment on 10.1.2013 and 1.2.2013. On being confronted as to in between Order VIII, Rule 1 and Section 148 of the Civil Procedure Code which would prevail and further, what is the date of service of summons, learned counsel for the petitioners sought time to apprise the Court the date of service of the summons. As prayed, put up this case on 16.8.2013 in the additional cause list.” 2. Learned counsel for the petitioners submits that in view of the availability of the specific provision for filing written statement, general provisions contained under Section 148 of the Code of Civil Procedure will not prevail. It may be noticed that under Order VIII Rule 1 C.P.C. written statement has to be filed within a period of 30 days from the date of receipt of summons and on the discretion of the Court, the time can be extended by the Court but not later than 90 days whereas under Section 148 C.P.C. time cannot be extended beyond 30 days. 3. Considering the facts and circumstances of the case and pendency of the release application since 1997, this writ petition is taken up for final disposal without issuing notice to the respondents with the liberty to them to seek recall of the order which is going to be passed today, if the otherside feels aggrieved. 4. It is not in dispute that the petitioners appeared for the first time before the Court on 20.12.2012 after service of notice, on which date some additional papers were supplied to the petitioners and date was fixed for 10.1.2013. 4. It is not in dispute that the petitioners appeared for the first time before the Court on 20.12.2012 after service of notice, on which date some additional papers were supplied to the petitioners and date was fixed for 10.1.2013. On 10.1.2013, an adjournment was sought by the petitioner No. 1 which was accepted after imposing cost of Rs. 100/- with the rider that in case, the written statement is not filed upto 1.2.2013, the opportunity of filing written statement will be closed. The attention has been invited towards the provisions contained under Order VIII Rule 1 of the Code of Civil Procedure which is reproduced hereinunder : 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 form the date of service of summons. 5. From the bare reading of the aforesaid provisions it would transpire that written statement is to be filed within thirty days from the date of service of summons. According to the proviso to this rule, in case the defendant fails to file written statement within thirty days, it may be filed after extension of the time granted by the Court but not later than ninety days from the date of service of summons. Here in this case according to the petitioner, ninety days have yet not expired. 6. Otherwise also, the provisions contained under Rule 1 of Order VIII fixes the period for filing the written statement by a party. It does not prohibit the Court to extend the time for filing written statement under compelling reasons, if the same could not be filed within the time framed of either 30 days or ninety days as provided under the proviso to Rule 1. The purpose of establishment of the Court are to impart substantial justice to the parties and not to scuttle the justice on technicalities. 7. The Apex Court in the case of Collector, Land Acquisition, Anantnag and another v. Mst. The purpose of establishment of the Court are to impart substantial justice to the parties and not to scuttle the justice on technicalities. 7. The Apex Court in the case of Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, JT 1987 (1) SC 537 : 1987 (2) SCR 387 , has held that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 8. In State of U.P. v. Mohd. Nooh, AIR 1958 SC 86 , the Apex Court has observed that justice should be administered in our Courts in common sense, liberal way and be broad based on human values rather than on narrow and restricted considerations hedged round with hair splitting technicalities. 9. The orders and rules framed under the C.P.C. are like as path way to achieve the end of justice. The Code prescribes the methods and ways to get the justice from a Court of law. It only prescribes the procedure but the end of justice normally cannot be achieved without exchange of pleadings and unless the conduct of the party seeking time to file written statement is mala fide, the time should not normally be refused and the inconvenience caused to the Court or the otherside be compensated by imposing cost. The power to grant or refuse time is although discretionary but discretion is to be exercised in judicial manner. Here the petitioners have for the first time appeared before the Court on 20.12.2012 and on 10.1.2013 (the first date fixed), the Court restricted the period upto 1.2.2013 for filing written statement that too after imposing cost of Rs. 100/- while granting adjournment. 10. The Apex Court while interpreting the provisions contained under Rule 1 of Order VIII in Smt. Rani Kusum v. Smt. Kanchan Devi and others, AIR 2005 SC 3304 , has observed as under : Order VIII, Rule 1 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. Further, 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. Though the power of the Court under the proviso appended to Rule 1 of Order VIII is circumscribed by the words - “shall not be later than ninety days” but the consequences flowing from non-extension of time are not specifically provided though they may be read by necessary implication. The power of Court to extend time under O.8, Rule 1, is not completely taken away by amendment made to O.8, R.1, however, departure therefrom would be by way of exception. 11. This view has again been taken by the Apex Court in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2005 SC 3353 , where the Apex Court has observed as under : 21.The use of the word ‘shall’ in Order VIII 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. 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 or procedure are handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice. 22. In construing this provision, support can also be had from Order VIII 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 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 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 VIII Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the Court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII Rule 1. There is no restriction in Order VIII 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 VIII Rule 1 providing for 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. Clearly, therefore, the provision of Order VIII Rule 1 providing for 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 VIII Rule 1. Section 39. 12. The same view has been taken in Kailash v. Nanhku and others, AIR 2005 SC 2441 . 13. In view of foregoing discussions and considering the facts and circumstances of the case, I am of the considered opinion that the learned prescribed authority has erred in passing the impugned order, therefore, it can’t be sustained in the eye of law. It is hereby quashed. The writ petition succeeds and is allowed. The petitioners are granted two weeks’ time to file written statement from the date of receipt of certified copy of the order of this Court.The otherside is compensated by imposing Rs. 2500/- cost upon the petitioners which is to be paid by the petitioners, to the contesting respondents, while filing the written statement.