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Madhya Pradesh High Court · body

2014 DIGILAW 807 (MP)

Laxmi v. Harivilas

2014-07-11

SUJOY PAUL

body2014
JUDGMENT Sujoy Paul, J. 1. Heard. 2. This petition filed under Article 227 of the Constitution is directed against the order dated 24.06.2014, whereby right of petitioners/defendant for filing written statement is closed by the Court below. 3. The respondent No. 1 filed suit for declaration and permanent injunction. Notices were issued to the other side. In the said suit, petitioner filed an application under Order 7 Rule 11 C.P.C. which was allowed by the court below. Against this order, plaintiff/respondent preferred an appeal which was allowed on 20.03.2014. The present petitioner preferred Misc. Appeal MA No. 327/2014 before this Court against the said order dated 20.03.2014. Misc. Appeal was rejected on 05.04.2014. Thereafter petitioner filed review petition No. 189/20114 which was dismissed by this Court on 15.05.2014. Admittedly, till 15.05.2014 the petitioner/defendant did not file written statement. 4. The next date fixed before the Trial Court was 16.05.2014. On the said date, by imposing Rs. 50/- as costs, last chance was given to the petitioner to file written statement. It was made clear by the court below that if written statement is not filed by the next date, right to file written statement shall automatically stand forfeited. The matter was fixed on 18.06.2014. On 18.06.2014 the petitioner preferred another application under Section 151 C.P.C. and prayed for another last opportunity of seven days on the ground that he is suffering from some ailment. The court below granted another last opportunity in the interest of justice with further finding that if by next date written statement is not filed, the right shall stand forfeited. The matter was fixed for 24.06.2014. On the said date petitioner did not file written statement but filed an application under Section 61 of Transfer of Property Act. The Court below after considering the earlier orders, closed the right of filing written statement. This order is called in question on the ground that earlier order 7 Rule 11 C.P.C. application of petitioner was allowed which was disturbed by appellate order dated 20.03.2014. Thereafter matter travelled to High Court in MA 327/14 and RP 189/14. Because of pendency of these matters, the written statement was not filed and therefore, the Court below should have granted further time to the petitioner. 5. Thereafter matter travelled to High Court in MA 327/14 and RP 189/14. Because of pendency of these matters, the written statement was not filed and therefore, the Court below should have granted further time to the petitioner. 5. Shri Dhakad further submits that the Court below has erred in closing right of written statement without deciding application under Section 61 of Transfer of Property Act. 6. I have heard learned counsel for the petitioner at length and perused the record. 7. The order 8 Rule 1 C.P.C. was amended with effect from 01.07.2002. The object behind substituting Order 8 Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. 8. In Kailash Vs. Nankhu and Others, (2005) 4 SCC 480 the Apex Court opined as under:- Ordinarily, the time schedule prescribed by Order 8 Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the court. The extension of time sought for by the defendant from the court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for the asking, more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order 8 Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended. 9. 9. A plain reading of the finding in Kailash (supra) makes it clear that the defendant is obliged to take steps for drafting the defense and filing the written statement immediately upon receiving the writ of summons. 10. In the present case, admittedly, the extended period of 90 days as mentioned in order 8 Rule 1 C.P.C. was already over till decision of review petition, stated above. Thereafter petitioner prayed for time on 16.05.2014 and 18.06.2014 but did not file reply. 11. The Court below has granted sufficient opportunities to the petitioner to file written statement. 12. The Apex Court in said judgment in no uncertain terms made it clear that although Order 8 Rule 1 C.P.C. is part of procedural law and directory in nature, the permission to file written statement cannot be granted as a matter of routine and merely upon asking. The same view is taken by the Apex Court in Salem Advocate Bar Association, T.N. Vs. Union of India, 2005(6) SCC 344 . The Apex court opined that the provision of Order 8 Rule 1 providing for upper limit of 90 days to file written statement is directory. Having said so, it was made clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8 Rule 1. 13. In R.N. Jadi and Brothers and Others Vs. Subhash Chandra, (2007) 6 SCC 420 the Apex Court opined as under:- 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. 13. In R.N. Jadi and Brothers and Others Vs. Subhash Chandra, (2007) 6 SCC 420 the Apex Court opined as under:- 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 vs. Sir Alfred McAlpine & Sons, (1968) 2 QB 229 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? 14. In Aditya Hotels Pvt. Ltd. Vs. Bombay Swadeshi Stores, (2007) 14 SCC 431 the Apex Court opined that the extension of time can be granted by way of exception and for reasons to be recorded in writing. It is important to note that Apex Court opined that in no case the defendants be permitted to seek extension of time when there is laxity or gross negligence on the part of the defendant or his counsel. Judgment of Kailash (supra) is again considered in Sandeep Thapar Vs. SME Technologies Pvt. Ltd. 2014(2) SCC 302 . 15. In the present case, the court below has given ample and adequate opportunity to the petitioner to file written statement. Petitioner failed to show any exceptional and justifiable reason for extension of time to file written statement beyond 24.06.2014. Judgment of Kailash (supra) is again considered in Sandeep Thapar Vs. SME Technologies Pvt. Ltd. 2014(2) SCC 302 . 15. In the present case, the court below has given ample and adequate opportunity to the petitioner to file written statement. Petitioner failed to show any exceptional and justifiable reason for extension of time to file written statement beyond 24.06.2014. The order sheet dated 16.05.2014 and 18.06.2014 shows that court has shown sufficient elasticity to secure the ends of justice. The petitioner has deliberately avoided to file written statement. Thus, I am unable to hold that Court below has committed any error in closing the right to file written statement. If petitioner wanted to take any preliminary objection, that could have been inserted in the written statement itself. This kind of dilatory tactics cannot be appreciated. If unlimited time is granted to the litigants to file written statement, it will defeat the purpose of amendment in Order 8 Rule 1 C.P.C. and said provision will become bunch of dead letters. 16. The scope of interference under Article 227 of the Constitution is limited. If order is shown to be passed by a Court having no jurisdiction, it suffers from any manifest procedural impropriety or perversity, interference can be made. Even an erroneous order is not required to be corrected in these proceedings under Article 227 of the Constitution. The basic purpose of exercising the said jurisdiction is to keep the courts below within the bounds of their authority. Interference can be made sparingly for the said purpose and not for correcting error of facts and law in a routine manner. Another view is possible, is not a ground for interference. This view is taken in Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil, (2010) 8 SCC 329 . There is no ingredient on which interference can be made in this petition. 17. The court below has taken a plausible view which warrants no interference by this Court. 18. The petition fails and is hereby dismissed.