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2013 DIGILAW 925 (PAT)

Sheela Devi v. Sunita Devi

2013-08-02

CHAKRADHARI SHARAN SINGH

body2013
ORAL ORDER 1. Petitioner in the present application under Article 227 of the Constitution of India is defendant second party in Title Suit No. 158 of 2007. She is aggrieved by an order dated 22.5.2013 passed by learned Sub-Judge-3rd, Samastipur in Title Suit No. 158 of 2007, whereby application filed on behalf of the petitioner for accepting written statement in the said title suit after recalling ex-parte order dated 9.6.2009 has been rejected. 2. I have Heard Mr. N.K. Agarwal, learned Senior Counsel appearing on behalf of the petitioner at length. 3. Certain facts are not in dispute. Title Suit No. 158 of 2007 has been filed by respondents first set seeking a declaration that the property as described in Schedule III is the portion of Schedule I property purchased by the plaintiff/Respondent no.1 and other connected reliefs. Prior to the institution of the suit, Eviction Suit No. 1 of 2007 was filed by the respondents first set. The petitioner appeared in Title Suit No. 158 of 2007 as well as Eviction Suit No. 1 of 2007. She appeared in Title Suit No. 158 of 2007 on 12.1.2009. She did not file her written statement in that case. However, she filed her written statement in Eviction Suit No. 1 of 2007. As no written statement was filed in Title Suit No. 158 of 2007 learned Sub-Judge-3rd, Samastipur vide an order dated 9.6.2009 ordered for proceeding with the suit ex-parte. On 2.4.2013 petitioner filed an application before the Court below for accepting the written statement after recalling the order for proceeding ex-parte, dated 9.6.2009. The petitioner asserted in the said application dated 2.4.2013 that after she appeared in the case on 12.1.2009, one Prem Sagar Giri, the head of the family became badly affected by different diseases. Thereafter, he was admitted in Patna Medical College & Hospital on 8.6.2009. An order for ex-parte hearing was passed on 9.6.2009. They also pleaded that they remained under treatment till 8.12.2009 and the pairvikar left pairvi in the case and, therefore, no written statement could be filed. 4. From the contents of the application dated 2.4.2013, which is Annexure-4 to the application, it will appear that the explanation is only with respect to the illness of the head of the family of the petitioner/defendant Prem Sagar Giri for the period 12.1.2009 up to 8.12.2009 for not filing the written statement. 4. From the contents of the application dated 2.4.2013, which is Annexure-4 to the application, it will appear that the explanation is only with respect to the illness of the head of the family of the petitioner/defendant Prem Sagar Giri for the period 12.1.2009 up to 8.12.2009 for not filing the written statement. There is absolutely no discussion as to why this application for recalling the order for proceeding ex-parte was filed more than three years thereafter. 5. Further from the impugned order it appears that the Court below did not accept the story of illness because of which written statement could not be filed in T. S. No. 158 of 2007. The Court below observed and it was not in dispute that the petitioner/defendant second party had been regularly contesting Eviction Suit No. 1 of 2007 and accordingly it came to a finding that such story was incorrect and false. The Court below has also considered the aspect that the petitioner is a profroma defendant in the suit and no relief has been claimed against her in the said suit. In such circumstance, the Court below rejected the application by the impugned order dated 22.5.2013. 6. Mr. N.K. Agarwal, learned Senior Counsel appearing on behalf of the petitioner has vehemently submitted that for the ends of justice the Court below ought to have accepted the written statement filed by the petitioner/defendant second party. 7. Mr. Agarwal, learned senior counsel has submitted, with reference to judgments of the Supreme Court that the provisions as contained in proviso to Order 8 Rule 1 of the Code of Civil Procedure is directory in nature and not mandatory and in appropriate cases the Courts can accept the written statement, though filed beyond time prescribed therein. He has placed reliance on a Supreme Court judgment reported in ( 2005) 4 SCC 480 ( Kailash V. Nanhku and others) to contend that the Courts are not powerless to permit a written statement being filed even beyond the period prescribed in proviso to Order 8 Rule 1 of the Code of Civil Procedure. He has also placed reliance on other judgments which are as follows:-namely,(1) (2005) 6 SCC 705 (Rani Kusum V. Kanchan Devi), (2) (2006) 1 SCC 46 ( Shaikh Salim Haji Abdul Khayumsab Vs. He has also placed reliance on other judgments which are as follows:-namely,(1) (2005) 6 SCC 705 (Rani Kusum V. Kanchan Devi), (2) (2006) 1 SCC 46 ( Shaikh Salim Haji Abdul Khayumsab Vs. Kumar and others) and (3) (2010) 15 SCC 441 (Bibbhabati Chakrabarty and others vs. Major Rama Chandra Mishra and others); so as to contend that the requirement contained in proviso to Order 8 Rule 1 of the Code of Civil Procedure is directory and not mandatory. 8. There cannot be any dispute over the legal proposition that the requirement as contained in Proviso to Order 8 Rule 1 of the Code of Civil Procedure is directory and not mandatory as has been held by the Supreme Court repeatedly in the judgments which has been relied upon by the learned senior Counsel. However, in my opinion, a written statement filed beyond the period of limitation prescribed cannot be accepted on mere askance. The Courts can permit written statement to be filed, if they are satisfied that sufficient reason exists for condoning the delay in filing of the written statement. The extension can be granted by the Courts only by way of exception. Paragraph 42 of the judgment of the Supreme Court reported in ( 2005) 4 SCC 480 (Kailash Vs. Nanhku & ors) which has been relied by Mr. Agarwal can be referred to in this connection, which reads thus:- “42. Ordinarily, the time schedule prescribed by Order 8 Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the Court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for asking, more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and recorded in writing by the Court to its satisfaction. The extension can be only by way of an exception and for reasons assigned by the defendant and recorded in writing by the Court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order 8 Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended.” 9. The suit was filed in the year 2007. Petitioner appeared in Title suit No. 158 of 2007 in the year 2009. She appeared and filed her pleadings in another suit being Eviction suit No. 1 of 2007 and did pairvi. According to her, she could not file written statement because of illness of a senior member of the family. This story has not been accepted by the Court below and the statement to this effect has been found to be incorrect and false. There is absolutely no explanation even in the present application as to what prevented the petitioner from approaching the Court immediately after coming from Hospital if that was the reason for not filing the written statement on time. The Court below has observed in the impugned order that the petitioner intended to prolong the hearing of the suit and to cause obstruction in disposal of Eviction Suit No. 1 of 2007. 10. In my opinion, extension can be granted only in a circumstance where the party to the suit is in a position to establish his bonafide. In the present case the Court below found that the story of illness for not filing the written statement within time was incorrect and false. There is absolutely no whisper as regards the reason for not approaching the trial Court after the illness till filing of the application on 2.4.2013. 11. This Court in such circumstance does not consider it to be a fit case in exercise of supervisory jurisdiction to interfere with the impugned order, which is based on cogent reasons and does not suffer from any legal infirmity. 11. This Court in such circumstance does not consider it to be a fit case in exercise of supervisory jurisdiction to interfere with the impugned order, which is based on cogent reasons and does not suffer from any legal infirmity. In a situation like the present one, I do not consider it appropriate, in facts and circumstances to permit filing of written statement even on the condition of payment of cost as latches on the part of the petitioner is palpable and appears to deliberate. This is also in the background of the fact that the Court below has observed that no relief has been sought in the plaint against the petitioner though this finding has been disputed by the learned counsel for the petitioner. In view of the above, this application is dismissed.