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2015 DIGILAW 266 (UTT)

GULFAM AHMAD v. MOHD. AAQIL

2015-05-25

ALOK SINGH

body2015
JUDGMENT : Hon’ble Alok Singh, J. (Oral) Present petition is filed assailing the order dated 18.04.2014, passed by the Additional District Judge, Vikas Nagar, Dehradun in O.S. No. 96 of 2011 rejecting the application of the plaintiff 30C2 and 42C2 whereby plaintiff has made prayer to reject both the written statements one filed by the defendant Nos. 1 and 2 jointly and other filed by defendant No. 3 separately on the ground that both the written statements were filed after expiry of 30 days from the date of service of summons and no application was ever moved by the defendants to condone the delay in filing the written statement or in other words, no explanation/ground is made out to extend the time to file written statement. 2. Undisputed brief facts of the present case, inter alia, are that plaintiff has filed suit for permanent prohibitory injunction against the defendants alongwith application for ad interim injunction in the Court of Civil Judge (Senior Division), Vikas Nagar, Dehradun, which was taken up for preliminary hearing on 13.10.2011. Having heard the learned counsel for the plaintiff / petitioner herein, learned Trial Court was pleased to issue notices on the application seeking ad interim injunction, paper No. 6C2, for 20.10.2011. On 20.10.2011, learned Trial Court was pleased to direct the plaintiff to take steps to serve the defendants by both the ways, i.e. by normal mode of service as well as by registered post for 03.11.2011. On 03.11.2011, since none of the defendants could be served, therefore, learned Trial Court once again was pleased to direct the plaintiff to take steps by both the ways to serve the defendants for 29.02.2012. On 29.02.2012, defendant Nos. 1 and 2 moved an adjournment application seeking time to file written statement as well as reply to ad interim injunction application whereupon learned Trial Court was pleased to grant time to file written statement as well as reply to the ad interim injunction application till 04.04.2012 and case was adjourned for 04.04.2012 for hearing on ad interim injunction too. On 04.04.2012, learned Trial Court was pleased to adjourn the case for 02.05.2012 for filing written statement as well as reply for the ad interim injunction application and for hearing of the ad interim injunction application. On 01.05.2012, learned District Judge was pleased to transfer the case from the Court of Civil Judge (Senior Division), Vikas Nagar to Addl. On 04.04.2012, learned Trial Court was pleased to adjourn the case for 02.05.2012 for filing written statement as well as reply for the ad interim injunction application and for hearing of the ad interim injunction application. On 01.05.2012, learned District Judge was pleased to transfer the case from the Court of Civil Judge (Senior Division), Vikas Nagar to Addl. District Judge, Vikas Nagar, therefore, case was taken up on the next date fixed, i.e. 02.05.2012 by Additional District Judge, Vikas Nagar, Dehradun. On 02.05.2012, defendant Nos. 1 and 2 have filed their joint written statement, which was accepted on record. Vide order dated 01.08.2012, plaintiff was permitted to take steps for service through publication on defendant No. 3. Summons / notices were published in the newspaper on 07.08.2012. Case was taken up on 30.08.2012, learned Trial Court was pleased to direct the plaintiff to serve copy of the plaint and documents on the defendant No. 3 and defendant No.3 was permitted to file his written statement and reply to ad interim application till 27.09.2012. On 27.09.2012, Presiding Officer was on leave and case was adjourned for 17.10.2012. On 17.10.2012, lawyers were on strike, therefore, case was adjourned for 01.11.2012. On 01.11.2012, defendant No. 3 also filed his written statement which was taken on record. Thereafter, plaintiff has moved both the applications for rejection of the written statements and to strike out the defence of the defendant Nos. 1, 2 and 3 which was dismissed by the impugned order. Feeling, aggrieved, plaintiff / petitioner has preferred present writ petition. 3. I have heard Mr. Dharmendra Barthwal, learned counsel for the plaintiff/petitioner and Mr. Rajat Mittal, learned counsel for the defendants/respondents and have carefully perused the record. 4. The only question involved in the present case is if Court has extended time beyond 30 days as well as beyond 90 days for filing the written statement from the date of service of summons and written statement was filed by the defendants within such extended time by the Trial Court, can written statement be rejected on the subsequent stage on the application of the plaintiff on the ground that same was filed beyond 30 days and no explanation was given to file written statement beyond 30 days ? 5. Mr. 5. Mr. D. Barthwawal, learned counsel for the petitioner further contends that in the present case although time was extended by the Trial Court time to time but without their being any explanation in writing by the defendants, therefore, defendant cannot take benefit of the fault committed by the Trial Court. He further contends that since defendants never sought any time giving extension, therefore, written statement field by the defendants should be rejected. 6. Hon’ble Apex Court the case of Kailash Vs. Nankhu and others reported in (2005) 4 SCC 480 , in paragraphs 42 and 46, has held as under:- “42. Ordinarily, the time schedule prescribed by Order VIII, 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 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 VIII, 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. 46. “We sum up and briefly state our conclusions as under:- (i) The trial of an election petition commences from the date of the receipt of the election petition by the Court and continues till the date of its decision. The filing of pleadings is one stage in the trial of an election petition. 46. “We sum up and briefly state our conclusions as under:- (i) The trial of an election petition commences from the date of the receipt of the election petition by the Court and continues till the date of its decision. The filing of pleadings is one stage in the trial of an election petition. The power vesting in the High Court to adjourn the trial from time to time (as far as practicable and without sacrificing the expediency and interests of justice) includes power to adjourn the hearing in an election petition affording opportunity to the defendant to file written statement. The availability of such power in the High Court is spelled out by the provisions of the Representation of the People Act, 1951 itself and Rules made for purposes of that Act and a resort to the provisions of the CPC is not called for. (ii) On the language of Section 87(1) of the Act, it is clear that the applicability of the procedure provided for the trial of suits to the trial of election petitions is not attracted with all its rigidity and technicality. The rules of procedure contained in the CPC apply to the trial of election petitions under the Act with flexibility and only as guidelines. (iii) In case of conflict between the provisions of the Representation of the People Act, 1951 and the Rules framed thereunder or the Rules framed by the High Court in exercise of the power conferred by Article 225 of the Constitution on the one hand, and the Rules of Procedure contained in the CPC on the other hand, the former shall prevail over the latter. (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. As per the dictum of the Apex Court in the case of Kailash (Supra), the purpose of providing time schedule for filing the written statement under Order 8 Rule 1 CPC is to expedite and not to scuttle the hearing. 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 C.P.C. 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 Order 8 C.P.C. 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 8 Rule 1 CPC is not completely taken away. Extension of time shall be given only by way of exception and for reasons to be recorded in writing by the Court. In no case, defendant shall be permitted to seek extension of time when the Court is satisfied that it is a case of negligence on the part of the defendant. 8. In the case of Shaikh Salim Haji Abdul Khayumsab Vs. Mr. Kumar reported in (2006) 1 SCC 46 , the Hon’ble Apex Court was dealing with the case when defendant has filed written statement within the extended time granted by the Court. In paragraph No. 16, Hon’ble Apex Court has held as under :- “16. In the facts and circumstances of the case, the maxim of equity, namely, actus curiae neminem gravabit - an act of court shall prejudice no man, shall be applicable. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia - the law does not compel a man to do what he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. The applicability of the aforesaid maxims has been approved by this Court in Raj Kumar Dey v. Tarapada Dey [1988]1SCR118, Gursharan Singh v. New Delhi Municipal Committee, [1996]1SCR1154 and Mohammod Gazi v. State of M.P. and Ors., [2000]2SCR871.” 9. As per the dictum of the Apex Court in the case of Shaikh Salim (Supra), an act of the Court shall prejudice no man, shall be applicable. 10. Hon’ble Apex in the case of Kailash (Supra) has held that time prescribed by Order 8 Rule 1 of the C.P.C. has to be honoured. As per the dictum of the Apex Court in the case of Shaikh Salim (Supra), an act of the Court shall prejudice no man, shall be applicable. 10. Hon’ble Apex in the case of Kailash (Supra) has held that time prescribed by Order 8 Rule 1 of the C.P.C. has to be honoured. 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. 11. Although learned Trial Court has extended time without assigning any valid reasons, however, since, Court itself has granted time by various orders as narrated hereinbefore, and those orders were never challenged by the plaintiff and allowed to attain finality, therefore, at this stage, for the act of the court, defendants should not be allowed to suffer. 12. Consequently, writ petition fails and is hereby dismissed.