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2014 DIGILAW 576 (ORI)

Sudeshna Kanungo v. Sunil Kanungo

2014-09-06

S.PANDA

body2014
1. CIVIL PROCEDURE CODE, 1908 - Order 8, Rule 1 - Stipulation of 90 days for filing written statement from the date of service of summons is not an iron tight jacket - It does not deal with the power of the Court and also does not specifically take away the power of the Court to take the written statement on record though filed beyond the time as provided for - Nature of provision is procedural - Detail stated. It intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the plaintiff and the person approaching the Court for quick relief and also to the serious inconvenience of the Court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried. 2. CIVIL PROCEDURE CODE, 1908 - Order 8, Rule 1 - Provision is directory - Ordinarily the time schedule contained in the provision is to be followed as a rule and departure there from would be by way of exception - 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 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 is needed to be given for circumstances 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 depending on the facts and circumstances of a given case. Case Referred: Smt. Rani Kusum vs. Smt. Kanchal Devi and Others, 2006 (I) OLR (SC) 8 ORDER In this Civil Miscellaneous Petition, the petitioner has challenged the order dated 8.1.2014 passed by the learned Civil Judge (Senior Division), Keonjhar in C.S. No. 77 of 2013. Petitioner is the mother of opposite parties. Opposite party No. 1 filed the suit for declaration of legitimate interest of suit schedule land in his favour. Petitioner is the mother of opposite parties. Opposite party No. 1 filed the suit for declaration of legitimate interest of suit schedule land in his favour. After receiving notice, petitioner appeared in the suit and took some time to file written statement. Due to illness, she could not supply the documents to file written statement on her behalf and her mental disable daughter. But the Court below without considering the matter passed the impugned order, which is challenged in this petition. Learned counsel for the petitioner submits that the petitioner is old lady aged about 70 years and due to illness, she could not file written statement within the stipulated period and she has taken further time to file written statement. But the Court below rejected the said application precluding the defendants from filing written statement. In support of his contention, he relied on the decision reported in Smt. Rani Kusum vs. Smt. Kanchal Devi and Others, 2006 (I) OLR (SC) 8. Learned counsel for the opposite party No. 1, however vehemently objected the contention raised by learned counsel for the petitioner and submitted that the defendant intentionally avoided to file written statement to delay the proceeding for which prejudice was caused to the plaintiff as the suit if filed for declaration of legitimate interest of suit schedule land in favour of plaintiff. The petitioner pleaded that the suit schedule land was purchased by the petitioner on 8.9.1998 in RSD No. 1765 for construction of residential house. However, after the death of her husband, she has constructed the building and is residing therein with her one son and one mental disorder daughter i.e. opposite party Nos. 2 and 3. The plaintiff-opposite party No. 1 is neither maintaining the petitioner nor taking care of his mental disorder sister. The petitioner to maintain herself and for future maintenance of her disable daughter, when she wanted to sale the suit schedule land to outsider, the plaintiff-opposite party No. 1 to harass her filed the suit and created problem to sale the land. The stipulation of 90 days for filing written statement from the date of service of summons is not an iron tight jacket. The stipulation of 90 days for filing written statement from the date of service of summons is not an iron tight jacket. The provision under Order 8 Rule 1 of the Code of Civil Procedure does not deal with the power of the Court and also does not specifically take away the power of the Court to take the written statement on record though filed beyond the time as provided for. Further the nature of the provision contained under Order 8, Rule 1 is procedural. It is not a part of the substantive law. It intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the plaintiff and the person approaching the Court for quick relief and also to the serious inconvenience of the Court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried. The said provision is directory. Keeping in view, the need for expeditious trial of civil cases which is persuaded to Parliament to enact the provision in its present form, it is held the ordinarily the time schedule contained in the provision is to be followed as a rule and departure there from would be by way of exception. 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 is needed to be given for circumstances 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 depending on the facts and circumstances of a given case. Keeping in view the settled position of law for effective adjudication of the dispute, this Court sets aside the impugned order dated 8.1.2014 passed by the learned Civil Judge (Senior Division), Keonjhar in C.S. No. 77 of 2013 and directs the Court below to accept written statement, which shall be filed by the petitioner within a period of two weeks from today. Interim order dated 12.3.2014 passed by this Court in Misc. Case No. 243 of 2014 stands vacated. The CMP as well as Misc. Interim order dated 12.3.2014 passed by this Court in Misc. Case No. 243 of 2014 stands vacated. The CMP as well as Misc. Case stands disposed of. Cases disposed of.