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2013 DIGILAW 39 (RAJ)

Lala Ram v. Damodar Prasad Khandelwal

2013-01-07

ALOK SHARMA

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JUDGMENT : Alok Sharma, J. The present writ petition has been filed against the order dated 31.07.2012, passed by the Additional District & Session Judge No.9. Jaipur Metropolitan. By the said order, the learned Judge has dismissed an application under Order 8 Rule 1 read with Section 148 Civil Procedure Code filed by the petitioner-defendant (hereinafter the defendant) and disallowed the defendant to file written statement to the suit for specific performance on the ground that not only the written statement was filed beyond the period of 90 days from the service of summons on the defendant, but also that the reasons for delay in filing the written statement was not supported by any material evidence on record. 2. Counsel for the defendant has submitted that the Hon'ble Supreme Court in the case of Salem Advocate Bar Association, T.N. v. Union of India, 2005(2) ACJ 492 (S.C.) : 2005(3) CCC 420 (S.C.) : 2005(6) SCC 344 has held that the provisions of Order 8 Rule I Civil Procedure Code are only directory in nature. He submits that albeit, ordinarily the written statement to the suit ought to be tiled within a period prescribed under Order 8 Rule 1 Civil Procedure Code', yet in situations beyond the control of the defendant, if such written statement is not filed within 90 days, the courts still have the discretion in the interest of justice to allow the application for tiling the written statement belatedly and take the written statement on record. Counsel submits that in the instant case, the application under Order 8 Rule 1 Civil Procedure Code was filed on the next (late immediately following the order dated 05.1 4.2012 when the defendant&% right to tile written statement was closed by the trial court. It is submitted that the granddaughter of the defendant was involved in an accident owing to which the written statement could be filed within time. It is further submitted that in the event the written statement were not to be taken on record by the trial court in a suit for specific performance, the defendant would face a grave irreparable loss. The further submission is that the delay is not unconscionable and for the short delay of mere 30 days beyond the prescribed period of 90 days for filing written statement, the respondent -plaintiff (herein after the plaintiff) can be compensated in terms of costs. 3. Mr. The further submission is that the delay is not unconscionable and for the short delay of mere 30 days beyond the prescribed period of 90 days for filing written statement, the respondent -plaintiff (herein after the plaintiff) can be compensated in terms of costs. 3. Mr. P.C. Shah, appearing for the plaintiff, would submit that the defendant appeared before the trial court on 05.01.2012 and thereafter sought time for filing written statement from time to time. He submits that the defendant not having tiled the written statement within a period of 90 days and thereafter not having advanced any cogent reasons with supporting material before the trial court in his application explaining reasons for the delay beyond his control in filing the written statement the trial court has acted in Accordance with the intent of the provision of Order 8 Rule 1 Civil Procedure Code and rightly dismissed the application for taking on record the written statement tiled about 120 days subsequent to service of summons on the defendant. Counsel submits that the intendment of Parliament as reflected in the amendment to Order 8 Rule 1 Civil Procedure Code is to expedite civil proceedings and the intendment of the Parliament should not be casually circumvented on the mere askance of the defendant now before this Court. 4. Heard the counsel for the defendant as also the plaintiff and perused the impugned order. 5. The Hon'ble Supreme Court in the case of Salem Advocate Bar Association (Supra). Kailash v. Nanhku & Ors., 2005(2) ACJ 72 (S.C.) : 2005(2) CCC 532 (S.C.) : 2005(4) SCC 480 , Zolba v. Keshao & Ors., 2008(3) CCC 081 (S.C.) : 2008(11) SCC 769 and Sambhaji & Ors. v. Gangabai & Ors., 2009(1) ACJ 001 (S.C.) : 2009(1) CCC 356 (S.C.) : 2008(17) SCC 117 has indeed held that the provisions of Order 8 Rule 1 Civil Procedure Code are directory in nature. A conjoint reading of the aforesaid judgments indicates that where a defendant cannot be found, on the facts before the court, guilty of a reckless laxity or gross negligence, he ought not be deprived of his defence in the suit laid against him. The plaintiff however for the purpose of granting indulgence to the defendant for belatedly filing the written statement when delay is not unconscionable be compensated in terms of costs. The plaintiff however for the purpose of granting indulgence to the defendant for belatedly filing the written statement when delay is not unconscionable be compensated in terms of costs. The Hon'ble Supreme Court has also taken caution to remind the courts that it ought not to be forgotten that in an adversorial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. 6. In my considered view, in the context of law enunciated above and in the facts of the case, detailed above, the petitioner-defendant cannot be held to have been guilty of reckless laxity or gross negligence. The delay in moving an application for taking the written statement on record is not unconscionable. The provisions of Order 8 Rule 1 Civil Procedure Code being directory in nature, it, therefore, lies within the discretion of the courts to take on record the written statement tiled belatedly. For the purpose of exercise of discretion, the courts have taken into consideration the overall circumstances including the explanation for the delay in filing the written statement and the period of such delay. In the instant case, the delay in filing the written statement is about 30 days from the maximum of 90 days provided for under Order 8 Rule 1 Civil Procedure Code. It is also not disputed that the application under Order 8 Rule I Civil Procedure Code was filed by the defendant on the next date immediately following the date on which his right to file written statement was closed. The cause for the delay in filing the written statement stated to be the accident of the grand-daughter of the defendant. This fact however was not supported by any relevant material evidence before the trial court. On this count, the defendant was certainly lacking. However, to my mind, in view of the fact that the suit filed is one for specific performance, in the interest of justice, I would seek to invoke the power of this Court under Article 227 of the Constitution of India and quash and set aside the order dated 31.07.2012, passed by the trial court and allow this writ petition on equitable grounds. 7. Consequently, the writ petition is allowed. The order dated 31.07.2012 passed by the trial court is quashed and set aside. 7. Consequently, the writ petition is allowed. The order dated 31.07.2012 passed by the trial court is quashed and set aside. The defendant will be entitled to have the written statement taken on record which is stated to have been already filed before the trial court on 04.05.2012, albeit only on payment of cost of Rs. 5.000/- to the plaintiff. 8. Stay application stands disposed of in view of the writ petition being disposed of.