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2014 DIGILAW 236 (CAL)

Sachi Dulal Chakraborty v. Rajendra Kumar Mishra

2014-03-19

SUBRATA TALUKDAR

body2014
Judgment : Subrata Talukdar, J. In this civil revisional application the petitioner challenges Order no.5 dated 5th December, 2013 passed by the Learned 7th Bench, City Civil Court at Calcutta in Commercial Suit no.5 of 2012. The petitioner in this revisional application is the defendant before the Learned Trial Court. The opposite party in this revisional application is the plaintiff before the Learned Trial Court. The petitioner is aggrieved by the rejection by the Learned Trial Court of two verified applications filed by the defendant on 15th of January, 2013. In one application the defendant had prayed for acceptance of the written statement by condoning the delay in filing the same on time. In the second application the defendant had prayed for recalling the Order of the Learned Trial Court dated 7th September, 2012 fixing the suit for ex-parte hearing. Sri Hiranmoy Bhattacharya, Learned Counsel has taken this Court to the contents of the application filed by the defendant for extension of time to file his written statement. The said application appears at page 25 of CO 1450 of 2013. Sri Bhattacharya has laid stress on paragraph 2 of the said application wherein the petitioner has pleaded that his wife “has been suffering from cancer since 2003 and during the month of August and September, 2012 the wife of the petitioner was seriously ill for which your petitioner was unable to contact with the Learned Advocate of your petitioner for giving instructions and for preparing written statement for the suit and for filing the same on the date fixed.” Sri Bhattacharya has also taken this Court to the provisions of the Code of Civil Procedure particularly Order 8 Rules 1 and 10 thereof which specify the time fixed for filing the written statement by a defendant. Drawing the attention of this Court to the West Bengal Amendment of the said provision Sri Bhattacharya points out that discretion has been conferred on the Court to accept the written statement even beyond the period of 90 days from receipt of the summons as ordained by statute. Sri Bhattacharya argues that the West Bengal Amendment further provides that the written statement, if not filed within the period of 90 days, the same can be accepted beyond the said period by the Court on furnishing of sufficient cause by the defendant. Sri Bhattacharya argues that the West Bengal Amendment further provides that the written statement, if not filed within the period of 90 days, the same can be accepted beyond the said period by the Court on furnishing of sufficient cause by the defendant. He has further argued that the West Bengal Amendment also provides for acceptance of written statement by the Court beyond a period of 120 days subject to special reasons for the delay caused to be furnished by the defendant. He pleads that the provisions of Order 8 Rule 10 read with the amendment applicable to the State of West Bengal indicate a directory and liberal view of the statutory mandate on acceptance of written statement. He points out that paragraph 2 of the application filed by the defendant before the Learned Trial Court disclose such special reasons arising out of the gravity of the illness being suffered by the wife of the defendant. Per contra Sri Srijib Chakraborty, Learned Counsel, appearing for the opposite party-plaintiff points out that summons were served on the defendant on 21st April, 2012. The application for extension of time to file the written statement was filed by the defendant on 15th January, 2013, i.e. after a period of 9 months. Taking this Court to the written objection filed on behalf of the opposite party-plaintiff to the application for extension of time of the defendant filed before the Learned Trial Court, Sri Chakraborty places paras 7 and 8 thereof. The said written objection appears at page 27 of the present revisional application. Sri Chakraborty argues that in paras 7 and 8 of the said written objection the opposite party-plaintiff has met the contention of the defendant on the illness of his wife by pleading as follows:- “With reference to the statements made in paragraph 2 and 3 of the said application are false and denied. It is denied that the wife of your petitioner has been suffering from Cancer since 2003 and during the month of August and September, 2012 the wife of your petitioner was seriously ill for which your petitioner was unable to contact with the Learned Advocate of your petitioner for giving instructions and for preparing the written statement for the above suit and for filing the same on the date fixed as earliest. It is also denied that today your petitioner filed the written statements in the above suit and considering the aforesaid facts and circumstances the unwilling laches may kindly condoned and the written statements may kindly be accepted for ends of justice as alleged or at all. Your petitioner states that the story made out by the defendant in filing the written statement after long delays is false, motivate and to delay the proceedings as the wife of your petitioner is a School Teacher and she was regularly attending the School during the alleged months i.e. August and September, 2012 and the defendant was also managing day to day affairs including his business and only to delay the hearing of the aforesaid suit the defendant has adopted the false and frivolous story. Sri Chakraborty has further argued that although the power of the Court to extend the time for filing written statement exists in the statute, at the same time such power cannot be exercised in all and sundry cases. According to him, the power of the Court is discretionary and must be exercised for bonafide consideration. In support of his arguments he has relied upon a decision of the Hon’ble Apex Court reported in 2009 3 SCC 513 (Mohammed Yusuf Vs. Faij Mohammed and Ors. ; Paras – 9 to 12) wherein it was held as follows:- “9. It is urged that the provisions of Order 8 Rule 1 of the Code of Civil Procedure having been held to be directory in nature by this Court in Kailash v. Nanhku, this Court may not exercise its discretionary 1. Written statement. Faij Mohammed and Ors. ; Paras – 9 to 12) wherein it was held as follows:- “9. It is urged that the provisions of Order 8 Rule 1 of the Code of Civil Procedure having been held to be directory in nature by this Court in Kailash v. Nanhku, this Court may not exercise its discretionary 1. Written statement. – The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.” Although in view of the terminologies used therein the period of 90 days prescribed for filing the written statement appears to be a mandatory provision, this Court in Kailash upon taking into consideration the fact that in a given case the defendants may face extreme hardship in not being able to defend the suit only because he had not filed written statement within a period of 90 days, opined that the said provisions was directory in nature. However, while so holding this Court in no uncertain terms stated that the defendants may be permitted to file written statement after the expiry of period of 90 days only in exceptional situation. 10. The question came up for consideration before this Court in M.Srinivasa Prasad v. Comptroller & Auditor General of India, wherein a Division Bench of this Court upon noticing Kailas held as under:- “7. Since neither the trial court nor the High Court have indicated any reason to justify the acceptance of the written statement after the expiry of time fixed, we set aside the orders of the trial court and that of the High Court. The matter is remitted to the trial court to consider the matter afresh in the light of what has been stated in Kailash case. The appeal is allowed to the aforesaid extent with no order as to costs.” 11. The matter was yet again considered by a three-Judge Bench of this Court in R.N. Jadi & Bros v. Subhashchandra. The matter is remitted to the trial court to consider the matter afresh in the light of what has been stated in Kailash case. The appeal is allowed to the aforesaid extent with no order as to costs.” 11. The matter was yet again considered by a three-Judge Bench of this Court in R.N. Jadi & Bros v. Subhashchandra. P.K. Balasubramanyan, J., thus: (R. N. Jadi case, SCC 428, Paras – 14- 15) “14. It is true that procedure is the handmaid of justice. The Court must always be anxious to do justice and to prevent victories by way of technical knockouts. But how far that concept can be stretched in the context of the amendments brought to the Code and in the light of the mischief that was sought to be averted is a question that has to be seriously considered. I am conscious that I was a party to the decision in Kailash v. Nanhku which held that the provision was directory and not mandatory. But there could be situations where even a procedural provision could be construed as mandatory, no doubt retaining a power in the Court, in an appropriate case, to exercise a jurisdiction to take out the rigour of that provision or to mitigate genuine hardship. It was in that context that in Kailash v. Nanhkuit was stated that the extension of time beyond 90 days was not automatic and that the Court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from the time-limit fixed by the Code and the power inhering for receiving written statements, after the expiry of the period permitted by law, in a routine manner. 15. A dispensation that makes Order 8 Rule 1 directory, leaving it to the Courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. 15. A dispensation that makes Order 8 Rule 1 directory, leaving it to the Courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasise that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the Court being conscious of the fact that even the power of the Court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order 8 Rule 1 must be adhered to and that only in rare and exceptional cases, will the breach thereof will be condoned. Such an approach by Courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in Courts. The lament of Lord Denning in Allen v. Sir Alfred McAlpine & Sons Ltd. that law’s delays have been intolerable and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times?” 12. In view of the authoritative pronouncements of this Court, we are of the opinion that the High Court should not have allowed the writ petition filed by the respondents, particularly, when both the learned trial Judge as also the Revisional Court had assigned sufficient and cogent reasons in support of their orders. Considered the rival submissions of the parties and the materials on record. This Court cannot help but notice the pains taken by the Learned Trial Court to arrive at a just finding with regard to the prayer of the defendant for extension of time to file the written statement. Considered the rival submissions of the parties and the materials on record. This Court cannot help but notice the pains taken by the Learned Trial Court to arrive at a just finding with regard to the prayer of the defendant for extension of time to file the written statement. This Court finds that the Learned Trial Court, while noticing the illness of the wife of the defendant also noticed the fact that the defendant did not answer to the claim of the plaintiff that during the period of August and September, 2012 his wife regularly attended her school and the defendant also managed his day to day affairs including his business. No explanation was forthcoming from the Learned Counsel for the petitioner too on this score. The Learned Trial Court also had the occasion to scrutinise the medical documents furnished by the defendant in support of his wife’s illness and found that such documents do not speak of any adverse condition suffered by her during the period August and September, 2012 for which he could justify non-filing of his written statement. Admittedly the written statement is sought to be filed after a period of 9 months. The position of law as it emanates from the statute and from settled authority is to the effect that although discretion is conferred on the Court to grant extension, such discretion must be diligently exercised in bonafide circumstances. This Court respectfully recognises the ratio laid down by the Hon’ble Apex Court in Mohammed Yusuf’s case (supra) and deems it just to apply the same to the facts of the present case. In the light of the foregoing reasoning this Court finds no illegality and/or infirmity in the Order impugned no. 5 dated 5th February, 2013 passed by the Learned 7th Bench, City Civil Court, Calcutta in Commercial Suit no.5 of 2012. CO 1450 of 2013 is thus dismissed. There will be however no order as to costs. Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.