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2014 DIGILAW 34 (ORI)

Ram Prasad Behera v. Nandi Kishore Pujhari

2014-01-16

B.R.SARANGI

body2014
Judgment : Dr. B.R. SARANGI, J. The plaintiff being the petitioner has filed this application assailing the order dated 06.02.2004 passed by the learned Civil Judge (Senior Division), Sambalpur in Civil (Money) Suit No.107 of 2002 rejecting his application for non-acceptance of the written statement filed by the defendants-opposite parties 1 to 6. 2. The petitioner who is one of the senior most advocates in the District Advocates’ Bar at Sambalpur Town filed Civil (Money) Suit bearing No.107 of 2002 against the opposite parties-defendants in which it is stated that M.S. Plot No.1987 is the roiyati land of the petitioner, which he had acquired 65 years ago. He got parcha in the major settlement and has been paying rent to the Government, which has recognized him as tenant in respect of the said land. The opposite parties-defendants illegally constructed a road over his raiyati plot no.1987 about two and half years back though the public road was recorded as M.S. Plot No.1994 in the major settlement. On 26.12.2001, when the petitioner started construction of a boundary wall over his land, the opposite parties obstructed to do so and lodged information falsely before the police alleging that the petitioner was going to obstruct the public road, which according to them was on M.S. Plot No.1987. The intention of the opposite parties-defendants was to get the petitioner arrested on the basis of the aforesaid false allegation and accordingly, they instituted a criminal case against the petitioner which was still pending by the time the suit was filed. Pursuant to notice all the opposite parties except opposite party no.6 appeared in court on 06.03.2003 and sought for time to file written statement on the ground that “due to non availability of some material papers relating to the suit”, they could not file the written statement and service return in respect of opposite party no.6 was awaited and the case was posted to 06.05.2003 for filing of written statement. The opposite parties-defendants filed written statement on 06.05.2003 on which date the petitioner filed an application under Order-8 Rule-1 CPC vide Annexure-2 with a prayer not to accept the written statement from the defendants because as per the provision of Order-8 Rule-1 CPC as amended in 2002, the defendant must file his written statement within 30 days from the date of service of summons on him or if he is unable to file written statement within that period of 30 days, he has to apply for time giving sufficient reasons therein and the court may give time for reasons to be recorded in writing as per the proviso appended to Order-8, Rule-1 CPC. 3. The petitioner-plaintiff stated that 30 days have expired much before 06.05.2003 and the defendants did not file any application for time to file written statement in court within the said period, therefore, the proviso to Order-8 Rule-1 CPC is not at all attracted. Therefore, it is stated that the written statement so filed cannot be accepted and the plaintiff should be heard in the matter. But the trial court by virtue of the impugned order rejected such petition and accepted the written statement filed by defendant nos.1 to 5 for just and proper adjudication. Against the rejection, the petitioner has filed this application. 4. Mr. Ramakant Mohapatra, learned Senior counsel appearing for the petitioner strenuously urged that since the law provides that the written statement has to be filed within 30 days of the receipt of summons and admittedly on being summoned opposite parties-defendant nos.1 to 5 entered appearance through their advocate on 06.03.2003. With all fairness the written statement could have been filed within 30 days, i.e. by 05.04.2003 but no application for grant of extension of time to file written statement was filed. Therefore, the learned trial court has committed gross error which is apparent on the face of the record by accepting the written statement filed by defendant nos.1 to 5 on 06.05.2003. Thus, such acceptance of written statement filed after expiry of 30 days period should be rejected. The same having been accepted, the petitioner seeks for interference of this Court. 5. Mr. Thus, such acceptance of written statement filed after expiry of 30 days period should be rejected. The same having been accepted, the petitioner seeks for interference of this Court. 5. Mr. K.R. Mohapatra, learned counsel for opposite parties-defendants, strenuously urged that after appearance of defendant nos.1 to 5 on 06.03.2003 time was sought to file written statement and accordingly, the learned trial court adjourned the suit to 06.05.2003 for filing of the written statement. In compliance of the said order, since the written statement was filed on the date fixed, there is no justifiable reason to contend that the written statement so filed should be rejected. In support of his contention he has relied upon the judgment of the apex Court in the case of Zolba v keshao & Ors, AIR 2008 SC 2099 . 6. Order-8 Rule-1 CPC deals with the written statement which is as follows: “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.” On reading of the provision mentioned above in particular, proviso to Order-8 Rule-1 CPC, it cannot be construed that the same provision is mandatory in nature rather it is directory one. This view has also been taken by the apex Court in Salem Advocate Bar Association, Tamilnadu v. Union of India, AIR 2005 SC 3353 wherein it is held that delay can be condoned and the written statement can be accepted even after expiry of 90 days from the date of service of summons in exceptionally hard cases. The use of word “shall” in Order-8 Rule-1 CPC by itself is not conclusive to determine whether the provision is mandatory or directory. The use of word “shall” is ordinarily indicative of mandatory nature of the provision but having regard to the decision, in that case same can be construed as directory. The use of word “shall” in Order-8 Rule-1 CPC by itself is not conclusive to determine whether the provision is mandatory or directory. The use of word “shall” is ordinarily indicative of mandatory nature of the provision but having regard to the decision, in that case same can be construed as directory. The position has been explained in paragraph 21 of the said decision which is as follows: “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 or procedure are hand-maid of justice and not its mistress. In the present context, the strict interpretation would defeat justice”. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Therefore, unless compelled by express and specific language of the statute, the provisions of Order-8 Rule-1 of CPC or any procedural enactment should not be construed in a manner, which would leave the court helpless to meet extraordinary situations in the ends of justice. Similar view has also been taken in C.N. Ramappa Gouda V. C.C. Chendie Gouda (Dead) L.Rs. and Another, (2012) 5 SCC 265 . 7. In view of the aforesaid fact and circumstances and considering the law governing the field, this Court finds that no illegality or irregularity has been committed by the learned trial court in rejecting the application filed by the petitioner-plaintiff to reject the written statement filed by defendants-opposite parties thereby affirms the order passed by the learned Civil Judge (Sr. Division), Sambalpur and accordingly, the writ petition is dismissed. Petition dismissed.