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2014 DIGILAW 3696 (ALL)

Gyan Chandra Hajela v. Hari Mohan Gupta

2014-12-10

SUDHIR AGARWAL

body2014
JUDGMENT Sudhir Agarwal, J. 1. The delay in filing this revision having been condoned vide order of date passed on Delay Condonation Application, let revision be registered with regular number and old number shall also continue to be shown in bracket for finding out details of case, whenever required by parties with reference to either of the two number. 2. As requested by learned counsel for revisionist, I proceed to hear the revision for admission today itself. 3. The order forfeiting to file written statement was passed by Trial Court since it was not filed within the time prescribed under Order 8 Rule 1 C.P.C. whereafter defendant-respondents filed written statement which has been accepted by Civil Judge (Senior Division), Kanpur Nagar on a cost of Rs. 500/- and this revision has been preferred against the aforesaid order dated 30.1.2014. 4. Sri Manas Bhargava, learned counsel for revisionist, submitted that the written statement was filed on 23.8.2013, i.e. 181 days, but without seeking condonation of delay by filing application Section 5 of Limitation Act, 1963 (hereinafter referred to as "Act, 1963") and, therefore, the application and written statement filed by defendants-respondents were barred by time. 5. The submission is thoroughly misconceived. The provision under Order 8 Rule 1 has been held to be discretionary. 6. Apex Court having considered the above provision in Kailash Vs. Nanhku JT 2005 (4) SC 204 held that the provision is directory in nature and the Court's power to extend time for written statement beyond the period provided by Order VIII, Rule 1 C.P.C. is not completely taken away. In para 45 (iv) & (v), the Apex Court said: "(iv) The purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1 of CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though, the language of the proviso to Rule 1 of Order VIII of the CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the Procedural Law, it has to be held directory and not mandatory. Though, the language of the proviso to Rule 1 of Order VIII of the CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the Procedural Law, it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by Order VIII, Rule 1 of the CPC is not completely taken away. (v) Though Order VIII, Rule 1 of the CPC is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case." 7. This has been followed by Apex Court subsequently in Zolba Vs. Keshao & Ors. 2008 (11) SCC 769 where in para 8 of judgment, the Court said: "Therefore, following the principles laid down in the decision, as noted hereinabove, it would be open to the court to permit the appellant to file his written statement if exceptional circumstances have been made out. It cannot also be forgotten that in an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. It cannot also be forgotten that 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." 8. In view of above exposition of law, I do not find any illegality, material irregularity or jurisdictional error in the order impugned in this revision warranting interference. 9. The revision is dismissed.