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2014 DIGILAW 483 (HP)

Nand Lal v. Puran Chand

2014-04-28

RAJIV SHARMA

body2014
Judgment : Justice Rajiv Sharma, Judge (oral). This petition is instituted against the order dated 10.3.2014 passed by the Civil Judge (Junior Division), Solan, District Solan in Civil Suit No. 198/1 of 2013. 2. Pertinent facts necessary for the adjudication of this petition are that respondents-plaintiffs (hereinafter referred to as the “plaintiffs” for convenience sake) have filed Civil Suit No. 198/1 of 2013 in the court of Civil Judge (Junior Division) seeking decree for permanent prohibitory injunction restraining the petitioners-defendants (hereinafter referred to as the “defendants” for convenience sake) from causing interference, encroachment and dispossessing them from the land comprised in Khata/Khatauni No. 19 min/20 khasra No.218 measuring 3 bighas 14 biswas situated in Mauja Nandal, Hadbast No.587, Tehsil and District Solan. 3. Defendants did not file the written statement within the stipulated period. An application was preferred under section 148 read with section 151 of the Code of Civil Procedure seeking time to file written statement on behalf of defendants. According to the averments contained in the application, father of defendant Sh. Nand Lal was sick. He was at a critical stage for the last one month. He was taken to hospital. He was discharged from the hospital. It is in these circumstances, defendants could not leave him alone at home at that critical stage. 4. Defendants have not placed any tangible material on record to establish that father of one of the defendants Sh. Nand Lal was sick and was hospitalized. No medical certificate has been placed on record. It is not believable that all the defendants were looking after the father of defendant Sh. Nand Lal. Even if one of the defendants was taking care, the other defendants could file the written statement. Learned Civil Judge (Junior Division) has dismissed the application on 10.3.2014. It is evident from the order dated 10.3.2014 that defendants had already been granted time, which expired on 22.2.2014. One more opportunity was granted to them to file written statement subject to costs of Rs. 200/-. However, despite this opportunity, defendants have not chosen to file the written statement. 5. It is evident from the order dated 10.3.2014 that defendants had already been granted time, which expired on 22.2.2014. One more opportunity was granted to them to file written statement subject to costs of Rs. 200/-. However, despite this opportunity, defendants have not chosen to file the written statement. 5. Learned Single Judge of Rajasthan High Court in Nemichand Burand and another vs. Jorawarmal and others, AIR 2005 Rajasthan 235 has held that since the defendant had not been able to produce medical certificate before trial court to prove that he was suffering from heart ailment and was advised complete bed rest, the period for filing the written statement could not be enlarged. Learned Single Judge has held as under: 32 “Upon bare perusal of the Order 8, Rule 1 the defendant can submit his statement of defence within 30 days from the date of service of summons and beyond the expiry of 30 days the petitioner can be allowed to submit the written statement within the period of 90 days with the permission of the Court. 33 For the enlargement of the period there is provision in CPC under Section 148 any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in it discretion, from time to time, enlarge such period ( not exceeding thirty days in total), even though the period originally fixed or granted may have expired. 34 Admittedly in the instant case the written statement is filed after expiry of the period and for the enlargement of time the application under Order 8 Rule 1 read with Section 148 and 151 has been filed by the petitioner. The application so filed by the petitioner is also annexed herewith the writ petition as Annex. 4. The reasons, which are stated in the application are given in para 5. Para 5 of the application is reproduced hereunder: (Vernacular matter omitted……Ed.) 37. Now in the writ petition the petitioner has placed the medical certificate along with the rejoinder to the reply. The consistent view has been taken by the Hon’ble Supreme Court and this High Court while exercising power under Art. 227 that the documents, which are placed in the writ petition cannot be examined as the petitioner has failed to produce the same before the trial Court. The consistent view has been taken by the Hon’ble Supreme Court and this High Court while exercising power under Art. 227 that the documents, which are placed in the writ petition cannot be examined as the petitioner has failed to produce the same before the trial Court. This Court cannot sit as an appellate Court. 38. As per Order 8, Rule 9 no pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same. 39. The petitioner had the opportunity to move before the trial by set-off counter-claim and move to seek leave from the trial Court to place the document on record. By bare perusal of Rule 9 reveals that no written statement or counter-claim can be accepted without seeking prior leave form the court. 40. Similarly as the petitioner has not submitted particulars and documents attached with the application and only filed an affidavit of his daughter, which is not found sufficient to show the reason, which prevents the petitioner not to file the written statement well within time. As per Rule 6 of Order 8 the particulars of set-off to be given in written statement. 41. There are two defendants/petitioners. If petitioner No.1 was fell ill and was advised rest then petitioner No.2 could have filed his written statement. As informed by learned counsel for the respondents plaintiff that petitioner No.2 has also not filed any written statement. It is also observed that there is no reason why the writ petitioner-defendant No.2 has not filed the written statement. 42. I do not want to express my opinion with regard to petitioner No.2 since petitioner No.1 only moved application under Order 8, Rule 1 read with Section 148. It is the choice of the petitioner No.2 to move proper application for seeking leave form the trial Court. But in any case I am not convinced with the submissions made on behalf of the petitioner that petitioner on account of ailment was not able to file written statement. 43. It is the choice of the petitioner No.2 to move proper application for seeking leave form the trial Court. But in any case I am not convinced with the submissions made on behalf of the petitioner that petitioner on account of ailment was not able to file written statement. 43. I find no illegality in the observations made by the trial Court while rejecting the application filed by the petitioner No.1 under Order 8, Rule 1 and Order 8, Rule 9 read with Sections 148 and 151, CPC. The judgments, which are referred by the petitioner are not applicable to the facts and circumstances of the present case. In view of the settle proposition of the Supreme Court and in view of the provisions of Order 8, Rule 1 and order 8, Rule 9 and Sections 148 and 151, I find no illegality in the order dated 10-11-2003 passed by the trial Court and no interference whatsoever is required by this Court.” 6. Their Lordships of the Hon’ble Supreme Court in Kailash v. Nankhu and others, AIR 2005 SC 2441 have held that there is no absolute embargo on court’s power to extend the period to file written statement, but the extension of time, however, is to be granted only for exceptional circumstances. Their Lordships have held as under: “45 (iv) The purpose of providing the time schedule for filing the written statement under Order 8 Rule 1 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 Order 8 CPC is couched in negative form, it does not specify any penal consequences flowing from the noncompliance. 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 8 Rule 1 CPC is not completely taken away.” 7. Their Lordships of the Hon’ble Supreme Court have reiterated the principles laid down in AIR 2005 SC 2441 in Sandeep Thapar vs. SME Technologies Private Limited, (2014) 2 SCC 302 as under: “5. Their Lordships of the Hon’ble Supreme Court have reiterated the principles laid down in AIR 2005 SC 2441 in Sandeep Thapar vs. SME Technologies Private Limited, (2014) 2 SCC 302 as under: “5. The application of the appellant for seeking extension in time for filing the written statement has been rejected with the observation that that Order VIII Rule 1 CPC is mandatory and the Court cannot permit filing of a written statement beyond the 30 days from the date of service of summons. At best, the Court has power to permit a period of further 60 days from the date of service of summons upon the defendant to file the written statement. But this has to be done for reasons to be recorded in writing. Since the appellant herein has filed the application beyond the period of 30 days + 60 days, it was not permissible for the Court to allow the appellant to file the written statement. 6. Learned counsel for the appellant has submitted that undoubtedly the limit under Order VIII rule 1 has to be observed, but in exceptional circumstances in order to ensure that the injustice is not done, the Court will have the power to permit the defendant to file the written statement.” 8. Present case does not fall under exceptional circumstances since the applicant despite number of opportunities given to them have failed to file written statement. 9. Learned Civil Judge (Junior Division) has rightly struck off the right of defence of the defendants and has fixed the case for plaintiffs’ evidence on 12.6.2014. There is neither any illegality nor any perversity in the order passed by the Civil Judge (Junior Division) and, as such, there is no need to interfere with the same. 10. Accordingly, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. No costs.