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2015 DIGILAW 649 (JK)

Karam Chand v. Billu

2015-12-10

MUZAFFAR HUSSAIN ATTAR

body2015
JUDGMENT : Muzaffar Hussain Attar, J. 1. Respondent No. 1 has instituted a civil original suit for declaration and permanent prohibitory injunction before the Court of learned Munsiff, Kathua against the petitioner-defendant No. 1. Learned Trial Court vide order dated 09.07.2012, on failure of the petitioner-defendant No. 1 to file written statement, closed the right to file the same. It is this order which is called in question in this petition filed under Section 104 of the Constitution of Jammu and Kashmir. Learned counsel for the petitioner-defendant No. 1 submitted that the fault in filing the written statement was neither deliberate nor intentional, but it was because of the mistake of the learned counsel, who forget to file the written statement within the period prescribed by the Court. Learned counsel in support of his contention referred to and relied upon the judgments of Hon'ble Supreme Court reported in 2005 (3) Civil Court Cases 368 (SC), Rani Kusum v. Kanchan Devi and Ors.,2009 (1) Civil Court Cases 356 (SC), Sambhaji and Ors. v. Gangabai and Ors., 2008 (3) Civil Court Cases 081 (SC), Zolba v. Keshao and Ors. 2. Learned counsel for the respondent No. 1-plaintiff vehemently argued the case and submitted that it was the duty of the petitioner-defendant No. 1 to file written statement within the period prescribed by the Court and also by the statute. He further submitted that learned counsel for the petitioner-defendant No. 1 has not filed any application seeking extension of time for filing written statement. Learned counsel submitted that pleadings of the writ petition are a bundle of contradictions and do not make out a case for allowing further time to the petitioner-defendant No. 1 to file written statement. Learned counsel submitted that no reasonable cause has been projected in the writ petition to enable the petitioner-defendant No. 1 to file written statement beyond the prescribed period. Learned counsel further submitted that the intention of making amendments in the Civil Procedure Code is to ensure that suits are decided within the reasonable despatch. Learned counsel submitted that if prayer of the petitioner-defendant No. 1 is allowed then the very purpose of the legislative amendments would stand defeated. 3. Learned counsel further submitted that the intention of making amendments in the Civil Procedure Code is to ensure that suits are decided within the reasonable despatch. Learned counsel submitted that if prayer of the petitioner-defendant No. 1 is allowed then the very purpose of the legislative amendments would stand defeated. 3. Learned counsel for the respondent No. 1-plaintiff in support of his contention referred to and relied upon the judgments of the Hon'ble Supreme Court reported in 2009 (3) SCC 513 , Mohammad Yusuf v. Faij Mohammad and Ors., 2013 (11) Scale 1 , Bal Gopal Maheshwari and Ors. v. Sanjeev Kumar Gupta. Learned counsel for the respondent No. 1-plaintiff prayed for dismissal of the writ petition. 4. True it is that the civil suits take decades together for their disposal. In some cases litigation transcends through generations. The legislature in order to ensure that the right of the litigating parties are not defeated by delay in disposal of the cases made amendments in the CPC. One such amendment is Order 8 CPC prescribed for filing written statement within the prescribed period. Court, however, is given discretion to extend the time for filing written statement, but for that reasons are to be recorded in writing. It is the duty of the Court to ensure that amendments made in the CPC are not defeated by extension of time for filing written statement beyond the prescribed period in a routine manner. The trial Court in view of the amendment made in the CPC has to have control over the proceedings pending on its files. The Trial Judge has to ensure that the proceedings before it are not allowed to act as un-bridled horses, but it is duty bound to reign in same. 5. Looking to the facts of this case, it appears that petitioner-defendant No. 1 had handed over the documents to his counsel for drafting written statement. However, learned counsel did not prepare the written statement and thus same could not be filed. In the facts and circumstances of the case petitioner-defendant No. 1 cannot be penalized for the mistake committed by his counsel. The respondent No. 1-plaintiff has been afforded opportunities to take steps for effecting service on the other defendants. In view of the fact that in the civil suit other defendants are yet to be served, time ought to have been extended for filing written statement. The respondent No. 1-plaintiff has been afforded opportunities to take steps for effecting service on the other defendants. In view of the fact that in the civil suit other defendants are yet to be served, time ought to have been extended for filing written statement. Granting further time would not in any manner whatsoever cause delay in disposal of the case. 6. The judgments cited by learned counsel for the parties, do provide scope to trial Court to extend the time in filing written statement beyond the prescribed period. But this discretion is restricted one and not absolute. 7. In view of the above recorded reasons, writ petition is disposed of in the following manner:- 8. The order dated 09.07.2012 passed by the learned Trial Judge to the extent it relates to the closing of right of the petitioner-defendant No. 1 to file written statement is set aside. The petitioner-defendant No. 1 shall file written statement within one week from today before the trial Court. In case the petitioner-defendant No. 1 fails to file written statement within one week from today, then his right to file the same shall be deemed to have been closed in terms of this order. The filing of written statement within one week from today would be subject to payment of cost of Rs. 5000/- to be paid by petitioner-defendant No. 1. Petitioner-defendant No. 1 shall deposit the aforesaid amount of Rs. 5000/- with the trial Court at the time of filing of the written statement which shall be paid to the respondent No. 1-plaintiff. Disposed of along with connected MP(s).