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2013 DIGILAW 27 (MEG)

Bashir Ahmed v. Khalil Ahmed

2013-07-09

T.NANDAKUMAR SINGH

body2013
Order Heard Mr. S. Deka, learned counsel appearing for the petitioner. None appears for the respondent without showing any reasons inspite of showing the name of the counsel for the respondent in the cause list. 2. For deciding the present revision petition, it is not required to mention the facts in detail leading to the filing of the T. S. No. 22 (H) 2000 in the Court of the Munsiff and also the pleaded case of the party. Only the fact sufficient for deciding the present revision petition is being noted. The sole respondent who is the brother of the present petitioner filed the T. S. No. 22 (SH) 2000 for declaration and permanent injunction along with Misc. Case No. 36(H) 2000 for an Ad Interim injunction against the present petitioner in respect of the shop premises called “M/s. K.B. & Sons” situated at G.S. Road, Shillong - 793001, Meghalaya. 3. The learned Munsiff passed an ex parte injunction order dated 14-12-2000 in the said Misc. Case No. 36(H) 2000, restraining the present petitioner/defendant from claiming the ownership of the said shop premises, i.e. suit premises and also restraining him from claiming joint ownership and interfering in any manner over the suit premises. 4. Being aggrieved by the said order, i.e. the said ex parte injunction order dated 14-12-2000, the petitioner preferred for an appeal being Misc. Civil Appeal No. 16(H) 2000 in the Court of the District Judge, East Khasi Hills District, Shillong. The learned District Judge, East Khasi Hills District, Shillong after hearing both the parties, by an order dated 31-5-2004 set aside the ex parte injunction order dated 14-12-2000 and remanded the case to the lower Court, i.e. the learned Munsif Court. 5. It appears that on an application filed by the respondent/plaintiff, the learned Munsiff passed an order dated 11-7-2005 for the proceeding of suit ex parte against the present petitioner/defendant. Thereafter, the petitioner/defendant also filed an application for setting aside of the said order dated 11-7-2005 for proceeding the TS No. 22(H) 2000 ex parte and also for allowing the petitioner/defendant to file the written statement. The learned Munsiff by the impugned order dated 28-6-2011 rejected the prayer of the petitioner/defendant for setting aside of the said order for proceeding the T.S. 22(H) 2000 ex parte and also for allowing the petitioner/defendant to file the written statement. The learned Munsiff by the impugned order dated 28-6-2011 rejected the prayer of the petitioner/defendant for setting aside of the said order for proceeding the T.S. 22(H) 2000 ex parte and also for allowing the petitioner/defendant to file the written statement. In the impugned order dated 28-6-2011, the Munsiff correctly stated that the provisions of Order VIII Rule 1, CPC is only directory and not mandatory. In support of the said finding, the learned Munsiff also referred to the decision of the Apex Court in Rani Kusum v. Kanchan Devi and others, 2005 (8) SBR 276 : ( AIR 2005 SC 3304 ) and Kailash v. Nankhu & Others, 2005 (4) SCC 480 : ( AIR 2005 SC 2441 ). 6. In spite of the above finding, the learned Munsiff declined the prayer of the petitioner/defendant for filing the written statement on the ground that there is no plausible explanation for not filing the written statement within the period as provided under Order VIII Rule 1, CPC. 7. In the above facts, it is clear that the petitioner/defendant had all along been participating in the proceedings of the said TS No. 22(H) 2000 and however, on the filing of the said misc. appeal by the petitioner/defendant against the said ex parte injunction order in the Court of the District Judge, East Khasi Hills District, Shillong, the record of the said Title Suit was with the learned District Judge for a considerable period. It is a well settled law that the procedure is handmaid and not a mistress of law; and the rule of procedure should sub-serve the justice and not govern, the procedure is only a channel for justice and not instrumental in obstructing justice. 8. In the case in hand the petitioner/defendant was not allowed to file the written statement for the reason that the petitioner/defendant did not file the written statement within the period as provided under Order VIII Rule 1 CPC, However, injustice shall cause the petitioner/defendant in case the petitioner/defendant is not allowed to file the written statement inasmuch as the petitioner/defendant is going to be condemned unheard. 9. However, the proceedings of TS No. 22(H) 2000 was delayed because of non filing of the written statement by the petitioner/defendant. In such circumstances, great inconvenience was caused to the learned Munsiff as well as the respondent/plaintiff in the early disposal of the said TS No. 22(H)2000. 9. However, the proceedings of TS No. 22(H) 2000 was delayed because of non filing of the written statement by the petitioner/defendant. In such circumstances, great inconvenience was caused to the learned Munsiff as well as the respondent/plaintiff in the early disposal of the said TS No. 22(H)2000. This being the position, this Court is of the view that for inconvenience and delay caused by the petitioner, cost should be imposed upon the petitioner. 10. For the foregoing reasons, the petitioner/defendant is allowed to file the written statement within 4 (four) weeks from today subject to the payment of Rs. 4000/- as a cost to the respondent/plaintiff. It is made clear that the written statement of the petitioner/defendant should not be accepted until and unless the said cost of Rs. 4000/- is paid to the respondent/plaintiff during the period indicated above. If the petitioner/defendant does not file the written statement within the period indicated above, the learned Munsiff shall proceed with the trial of the TS No. 22(H) 2000 without the written statement. 11. The impugned orders dated 11-7-2005 and 28-6-2011 passed in TS No. 22 (H) 2000 is set aside and revision petition is allowed with the conditions indicated above. 12. Registry is directed to send down the LCR to the Trial Court forthwith. In the peculiar nature of this case, it is also made clear that the learned Munsiff is not required to issue summon to the petitioner/defendant and the petitioner/defendant himself is to appear before the learned Munsiff for filing the written statement within the period indicated above. 13. Interim order, if any, shall stand vacated. Petition allowed.