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2013 DIGILAW 431 (RAJ)

Duda Ram Dangi v. Libra Feed Mills

2013-02-20

GOPAL KRISHAN VYAS

body2013
JUDGMENT 1. - Instant writ petition has been filed by the petitioner-defendant to quash order Annex. 2 dated 29.3.2012 whereby the opportunity to file written-statement was closed by the Addl. District and Sessions Judge No. 2, Udaipur on the ground that 90 days have already expired after service of notice upon the defendant-petitioner, so also, order dated 28.7.2012 passed by the Addl. District and Sessions Judge No. 2, Udaipur upon application dated 9.7.2012 filed under Section 151, C.P.C. alongwith application under Section 5, Limitation Act for condonation of delay and for taking written- statement on record. 2. The main contention of the petitioner-defendant is that the plaintiff respondent preferred a suit for recovery of Rs. 7 3,00,604/-, in which, after service of notice due to some unavoidable circumstances, reply was not filed by the petitioner-defendant and the trial Court closed the opportunity to file written- statement vide order dated 29.3.2012 while mentioning the words that "last opportunity was given for filing written-statement upto 16.2.2012", which is not proper because the trial Court was required to take into consideration the prayer made by the counsel for the petitioner-defendant for granting adjournment but it has not been acceded. 3. Further, it is argued that an application under Section 151, C.P.C. alongwith application under Section 5, Limitation Act was filed for granting opportunity to the petitioner to file written-statement but the learned trial Court inspite of submitting cogent reasons that the petitioner-defendant's father died on 22.1.2012 the trial Court refused to grant opportunity to file written-statement which is totally against the principles of natural justice and the adjudication made by the Hon'ble Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, reported in 2003 (1) WLC (SC) Civil 384 , and the judgment rendered by this Court reported in 2011 WLC 409 (Raj.), Onkarmal v. Kishore Kumar & Ors. , therefore, the order impugned may be quashed. 4. None appeared inspite of service to oppose the above prayer. 5. After hearing learned counsel for the petitioner, I have perused both the order impugned in this case. 6. It is true that reply was not filed within the stipulated period of 90 days and petitioner-defendant submitted that due to death of his father reply was not filed within time but the learned trial Court refused to grant opportunity of file written-statement. 6. It is true that reply was not filed within the stipulated period of 90 days and petitioner-defendant submitted that due to death of his father reply was not filed within time but the learned trial Court refused to grant opportunity of file written-statement. In the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India (supra), Hon'ble Supreme Court held that the provision of Order 8 Rule 1, C.P.C., is not mandatory but it is directory in nature, therefore, for cogent reasons delay can be condoned for the purpose of taking the written-statement on record. 7. With a view of interpreting the nature of Rule i of Order 8 of the Code of Civil Procedure, in the case of Smt. Rani Kusum v. Smt. Kanchan Devi & Ors., reported in 2005 (2) WLC (SC) Civil 390 , while adjudicating the controversy the Hon'ble Supreme Court in paras 16 and 17 of the judgment, held as follows: "16. It is also to be noted that though the power of the Court under the proviso appended to Rule 1ORDER8 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. 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. 17. Challenge to the Constitutional validity of the Amendment Act and 1999 Amendment Act was rejected by this Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India, JT 2002 (9) SC 175 . However to work out modalities in respect of certain provisions a Committee was constituted. After receipt of Committee's report the matter was considered by a three-Judge Bench in Salem Advocate Bar Association, Tamil Nadu v. Union of India , (supra). As regards Order 8, Rule 1 Committee's report is as follows: "The question is whether the Court has any power or jurisdiction to extend the period beyond 90 days. After receipt of Committee's report the matter was considered by a three-Judge Bench in Salem Advocate Bar Association, Tamil Nadu v. Union of India , (supra). As regards Order 8, Rule 1 Committee's report is as follows: "The question is whether the Court has any power or jurisdiction to extend the period beyond 90 days. The maximum period of 90 days to file written statement has been provided but the consequences on failure to file written statement within the said period have not been provided for in Order 8, Rule 1 . The point for consideration is whether the provision providing for maximum period of ninety days is mandatory and, therefore, the Court is altogether powerless to extend the time even in an exceptionally hard case. It has been common practice for the parties to take long adjournments for filing written statements. The legislature with a view to curb this practice and to avoid unnecessary delay and adjournments, has provided for the maximum period within which the written statement is required to be filed. The mandatory or directory nature of Order 8, Rule 1 shall have to be determined by having regard to the object sought to be achieved by the amendment. It is, thus, necessary to find out the intention of the legislature. The consequences which may follow and whether the same were intended by the legislature have also to be kept in view. In Raza Buland Sugar Co. Ltd., Rampur v. The Municipal Board, Rampur, AIR 1965 SC 895 , a Constitution Bench of this Court held that the question whether a particular provision is mandatory or directory cannot be resolved by laying down any general rule and it would depend upon the facts of each case and for that purpose the object of the statute in making out the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory." 8. Similarly, the co-ordinate Bench of this Court (at Jaipur Bench) in the case of Onkarmal v. Kishore Kumar & Ors. (supra), made following adjudication in paras 11 and 12 of the judgment: "11. Hon'ble Apex Court further in R.N. Jadi & Brothers & Ors. v. Suhhash Chandra, reported in 2007 (2) WLC Civil 563 : (2007) 6 SCC 420 , held that proviso to Order 8 Rule 1 C.P.C., does not take away the power of the Court to take written statement on record though filed beyond 90 days. They only cast an obligation on defendant to file written statement within the time provided for. 12. After considering all the facts and circumstances of the case, I am of the view that there was sufficient cause for not filing the written- statement in time, the right to file written-statement is a valuable right, therefore, ends of justice would meet in case written-statement filed by the Defendant No. I/petitioner is taken on record on payment of cost." 9. In view of the aforesaid, this writ petition is allowed. Both the orders impugned dated 29.3.2012 (Annex. 2) and order dated 28.7.2012 (Annex. 6) are hereby quashed. The petitioner is directed to file written-statement on or before 15.3.2013 before the trial Court upon cost of Rs. 2,000/- which shall be payable to the plaintiff before taking the written-statement on record.Petition allowed. *******