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2013 DIGILAW 465 (JHR)

Binod Raut v. Bina Raut

2013-04-09

P.P.BHATT

body2013
ORDER Petitioners by way of filing the present writ petition under Article 227 of the Constitution of India have prayed for issuance of an appropriate writ/ order/ direction for quashing and setting aside of the order dated 14.5.2009 passed by the learned Sub-Judge-I, Dumka in Title (P) Suit No. 117 of 2007 whereby the petitioners have been restrained from making repairing work/ construction of their dwelling house and the petitioners have also prayed for quashing and setting aside of the order dated 22.9.2008, whereby the learned court-below restrained the petitioners from filing their written statement in the suit. 2. Heard the learned counsel for the petitioners as well as respondents and perused the impugned orders as well as other materials placed on record. 3. So far as the order dated 14.5.2009 passed by the learned court-below is concerned, it appears that the said order is appealable under Order-43 of the CPC and therefore, the present prayer is not maintainable, as the alternative efficacious remedy is available to the petitioners. 4. So far as order dated 22.9.2008 is concerned, it appears that petitioners-defendants filed their appearance on 19.11.2007 and thereafter the learned court-below passed an order to close the evidence on 17.2.2008. Thereafter the petitioners submitted an application with a prayer to recall of the said order but the learned court-below has rejected the said request by passing the impugned order. 5. Petitioners are the defendants in Title (Partition) Suit and therefore, in the interest of justice, petitioners are required to be given an opportunity to put forward their case before the learned court-below by way of filing written statement. 6. Learned counsel for the petitioners has referred to and relied upon the judgment in the case of Bhola Manjhi @ Bhola Mahli versus Ramsahay Manjhi & others, reported in 2007(2) JLJR 372 . 7. The Hon’ble Apex court in the case of Salem Advocate Bar Assn. v. Union of India reported in (2005) 6 SCC 344 in para - 18, 19, 20 and 21 observed as follows:- “18. In Sangram Singh v. Election Tribunal, Kotah considering the provisions of the Code dealing with the trial of the suits, it was opined that: (SCR pp. 8-9) “Now a code of procedure must be regarded as such. v. Union of India reported in (2005) 6 SCC 344 in para - 18, 19, 20 and 21 observed as follows:- “18. In Sangram Singh v. Election Tribunal, Kotah considering the provisions of the Code dealing with the trial of the suits, it was opined that: (SCR pp. 8-9) “Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.” (emphasis in original) 19. In Topline Shoes Ltd. v. Corpn. Bank the question for consideration was whether the State Consumer Disputes Redressal Commission could grant time to the respondent to file reply beyond the total period of 45 days in view of Section 13(2) of the Consumer Protection Act, 1986. It was held that the intention to provide a time-frame to file reply is really made to expedite the hearing of such matters and avoid unnecessary adjournments. It was noticed that no penal consequences had been prescribed if the reply is not filed in the prescribed time. The provision was held to be directory. It was observed that the provision is more by way of procedure to achieve the object of speedy disposal of the case. 20. The use of the word “shall” in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. The provision was held to be directory. It was observed that the provision is more by way of procedure to achieve the object of speedy disposal of the case. 20. The use of the word “shall” in Order 8 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. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice. 21. In construing this provision, support can also be had from Order 8 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 the 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 the 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 8 Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. In construing the provision of Order 8 Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 Order 8, the court in its discretion would have the power to allow the defendant to file written statement even after expiry of the period of 90 days provided in Order 8 Rule 1. There is no restriction in Order 8 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 8 Rule 1 providing for the 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 8 Rule 1.” In view of the ratio laid down in the aforesaid judgments and with a view to give substantial justice, request made by the petitioners/ defendants is required to be considered and accordingly, petitioners/ defendants are required to be given an opportunity to file written statement so as to put forward their case in partition suit. Therefore, impugned order dated 22.9.2008 is required to be quashed and set aside. Accordingly, impugned order dated 22.9.2008 is ordered to be quashed and set aside. Written statement filed by the petitioners/ defendants be taken on record on payment of cost of Rs.500/-. It is further clarified that so far as order dated 14.5.2009 is concerned as the same is appealable order, in the event of preferring appeal by the present petitioners the delay if any caused on account of pendency of the present petition shall not come in the way of petitioners in preferring the appeal. The appellate authority shall consider the application for condonation of delay that may be filed at the time of preferring appeal by the present petitioners accordingly. Parties shall co-operate in the proceedings before the court-below for recording of further evidence. The appellate authority shall consider the application for condonation of delay that may be filed at the time of preferring appeal by the present petitioners accordingly. Parties shall co-operate in the proceedings before the court-below for recording of further evidence. Court-below shall also make endeavour to expedite the suit. With the aforesaid observation and direction, this writ petition stands disposed of. Petition disposed of.