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2014 DIGILAW 1426 (HP)

Mahinder Singh v. Prem Chand

2014-10-15

Tarlok Singh Chauhan

body2014
JUDGMENT Tarlok Singh Chauhan, Judge, (Oral). The petitioners have approached this Court under Article 227 of the Constitution of India for setting aside the order dated 02.05.2014 passed by the learned Civil Judge(Senior Division), Palampur, in Civil Suit No.10/14 titled Prem Chand versus Mahinder Singh and others, whereby the right to file written statement of the petitioners has been closed. 2. The respondent-plaintiff has filed a suit for declaration claiming declaration as set out in the suit with further consequential relief of permanent prohibitory injunction. Despite two opportunities, the petitioners did not file the written statement. Consequently, the right to file written statement was closed vide order dated 02.05.2014 which reads as follows:- “Written statement not filed. Proforma defendants not served. Written statement on behalf of defendants not filed even today. Period of more than 90 days has been lapsed. Therefore, right to file written statement on behalf of defendants is struck off by the order of the court. Now case be listed for service of proforma defendants on taking steps for 7.7.2014. At this stage, counsel for plaintiff stated that one of the proforma defendant No.5 has expired. Steps be taken for bringing on record his LRs on the date fixed.” 3. This order has been challenged by the petitioners on the ground that the learned Court below did not take into consideration the fact that the defendants-petitioners could not file written statement on 02.05.2014 due to the fact that they had wrongly noted the date 03.05.2014 instead of 02.05.2014 and even otherwise on 02.05.2014 the written statement was already prepared and since it was not attested, therefore, the same could not be filed. It is also claimed that the counsel representing the petitioners had tried to contact them on telephone on 02.05.2014 but their phones were not reachable due to signal problem. Lastly, it is contended that on earlier occasions written statement could not be filed because of the fact that the petitioners remained busy and disturbed due to death of their mother, who died after prolong illness on 29.03.2014. 4. Lastly, it is contended that on earlier occasions written statement could not be filed because of the fact that the petitioners remained busy and disturbed due to death of their mother, who died after prolong illness on 29.03.2014. 4. The petition is vehemently opposed by the respondent No.1 by claiming that sufficient opportunities have been granted to the petitioners to file written statement and it is only after the statutory period for filing the same had elapsed that the learned trial Court closed the right of the petitioners to file their written statement and, therefore, no exception could be taken to the order. 5. I have heard learned counsel for the parties and gone through the records of the case. At the outset, it may be observed that the time period of 90 days as provided in Rule 1 to Order 8 of the Code of Civil Procedure is not mandatory and reference in this regard can conveniently be made to the judgment of the Hon’ble Supreme Court in Salem Advocate Bar Association, Tamilnadu versus Union of India AIR 2005 SC 3353 wherein it has been clearly held that the provisions including proviso to Order 8 Rule 1 of CPC are not mandatory but directory. It has also been held therein that delay can be condoned and written statement can be accepted even after the expiry of 90 days from the date of service of summons. 6. Viewed in the light of aforesaid exposition of law, it can conveniently be held that the mere fact that period of 90 days had elapsed from the date of issuance of summons, cannot be the sole ground on the basis of which right to file written statement can be closed. 7. It is not disputed that the mother of the petitioners had died on 29.03.2014 after prolong illness and it is, therefore, legitimate to assume that the petitioners thereafter must have been busy with the post death rituals and ceremonies and in these circumstances there was bound to be some delay in filing of the written statement. The petitioners otherwise do not stand to benefit from filing the written statement beyond time, rather, run a serious risk of not filing the same within the prescribed period which is apparent from the fact that the petitioners have now been driven to this Court only on account of delay in filing of the written statement. The petitioners otherwise do not stand to benefit from filing the written statement beyond time, rather, run a serious risk of not filing the same within the prescribed period which is apparent from the fact that the petitioners have now been driven to this Court only on account of delay in filing of the written statement. 8. The Court must have a justifiable and liberal approach in such matters unless of course the Court is of the view that the litigant is out to abuse the process of Court or has no right in law or is trying to delay the outcome of the suit. It has to be understood that a litigant does not stand to benefit by not filing the written statement or filing the written statement belatedly. Refusing to condone the delay and taking on record the written statement can result in meritorious matters being decided ex parte which may result in cause of justice being denied. Even otherwise, when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred as the other side cannot claim to have vested right in injustice being done because of non deliberate delay. 9. There is no presumption that delay is occasioned deliberately or on account of culpable negligence or on account of malafides. A litigant does not stand to benefit by resorting to delay, rather he runs a serious risk. It must be grasped that the Judiciary is respected not on account of its powers to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. The matter has to be approached with a justice oriented approach and, therefore, the mere fact that the trial Court had afforded two opportunities to the petitioners to file their written statement and that the written statement has been filed after a period of 90 days in itself cannot be a ground to close the right of the petitioners to file written statement. 10. In view of the above discussion, the order passed by the learned trial Court on 02.05.2014 is not sustainable in the eyes of law and is accordingly set aside. Resultantly, the present petition is allowed in the aforesaid terms. However, since the respondent has been driven to un-necessary and otherwise avoidable litigation, this shall be subject to a costs of `2,500/-. Resultantly, the present petition is allowed in the aforesaid terms. However, since the respondent has been driven to un-necessary and otherwise avoidable litigation, this shall be subject to a costs of `2,500/-. Interim order dated 02.07.2014 passed in CMP No.9532 of 2014 is vacated. 11. The parties through their counsel are directed to appear before the learned trial Court on 31.10.2014 on which date the petitioners would file their written statement and also pay the costs. In the event of non-filing of the written statement or non-payment of costs, or both, the impugned order will automatically revive. 12. Pending application (s), if any, also stands disposed of. Copy ‘dasti’.