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2015 DIGILAW 981 (GAU)

Dulumoni Saikia v. Narendra Nath Sarma

2015-08-07

A.K.GOSWAMI

body2015
JUDGMENT : On 06.08.2015, this Court passed the following order:- “Heard Mr. D.K. Kataki, learned counsel for the appellant. None appears for the respondent though the names of the counsel are shown in the cause-list. Heard-in-part. In order to grant an opportunity to the counsel for the respondents, case be again called tomorrow i.e. on 07.08.2015.” 2. To-day also when the case is called, there is no representation on behalf of the respondent/plaintiff. 3. Mr. D.K. Kataki, learned counsel for the appellant/plaintiff has made further submissions today. As the learned counsel for the respondent/defendant has remained absent, the instant appeal is disposed of after hearing the learned counsel for the appellant/plaintiff. 4. This appeal is presented by the defendant against the judgment and decree dated 08.02.2005 passed by the learned District Judge, Morigaon in Money Appeal No.2/2004, affirming the judgment and decree dated 07.06.2004 passed by the learned Civil Judge (Senior Division), Morigaon in Money Suit No.6/2002. 5. The plaintiff filed the suit for recovery of Rs.50,000/- along with interest at the rate of 18% per annum from the date of receipt of the amount by the defendant till the amount is realized. 6. The case set out in the plaint is that the plaintiff and the defendant were known to each other and the defendant, being in need of money, approached the plaintiff in the year 1999 for a loan of Rs.50,000/- and accordingly, the plaintiff extended help by paying Rs.50,000/- as loan and in acknowledgement thereof, the defendant also executed a Hand- Note on 12.11.1999, promising to pay the said amount as and when demanded by the plaintiff. 7. The suit was filed on 11.11.2002 with deficit court-fee. The suit was dismissed for default on 13.12.2002 as the plaintiff was absent on that date without steps. The suit was restored to file by an order passed on 20.02.2003 in Misc.(J) Case No.2/2003. Order dated 25.04.2003 indicates that summons to the defendant was returned after service and that as the defendant was absent, the suit would proceed ex parte against her. In the said order, date of service of summons upon the defendant was not mentioned. Perusal of the records goes to show that summons was served on the defendant on 04.04.2003. By an order dated 25.04.2003, case was fixed for ex parte hearing on 06.05.2003. In the said order, date of service of summons upon the defendant was not mentioned. Perusal of the records goes to show that summons was served on the defendant on 04.04.2003. By an order dated 25.04.2003, case was fixed for ex parte hearing on 06.05.2003. Adjournments were sought for on that day and on 15.05.2003 and finally, on 04.06.2003, plaintiff adduced evidence in the form of PW-1 and the suit was thereafter decreed on 05.06.2003. 8. The defendant filed a petition under Order 9 Rule 13 of C.P.C. on 23.06.2003 for setting aside the ex parte decree and the said petition was registered as M.J. No.12/2003. After hearing the parties, by an order passed on 31.10.2003, the ex parte decree was set aside and the original suit was restored to file subject to payment of cost of Rs.100/-. The Money Suit was put up for orders on 08.12.2003 and 19.12.2003 was fixed for appearance. On 19.12.2003, the defendant prayed for time to file written statement and the petition was allowed fixing 19.01.2004 for filing written statement. On 19.01.2004, the defendant was absent but it is recorded in the order that there was a “Bandh” on that day, and accordingly, 29.01.2004 was fixed for filing written statement. Prayer for grant of time to file written statement was made by the defendant on 29.01.2004 and 09.02.2004. On 09.02.2004, last chance was given fixing 21.02.2004. On 21.02.2004, both the parties were absent and the case was fixed on 05.03.2004 for filing written statement. On 05.03.2004, again a prayer was made for grant of time to file written statement, and as a last chance, time was granted fixing 16.03.2004. On 16.03.2004, a petition, vide Petition No.240/2004, was filed for grant of time to file written statement on the ground of ailment and a medical certificate was enclosed. The petition was rejected and the case was fixed for ex parte hearing on 24.03.2004. On 24.03.2004, the defendant filed a petition being Petition No.273/2004, praying for vacating the ex parte order and to accept the written statement filed along with the said petition. The petition was rejected and 29.05.2004 was fixed for ex parte hearing on which date plaintiff adduced evidence and thereafter, on 07.06.2004, the suit was again decreed ex parte. The appeal preferred also came to be dismissed. 9. The petition was rejected and 29.05.2004 was fixed for ex parte hearing on which date plaintiff adduced evidence and thereafter, on 07.06.2004, the suit was again decreed ex parte. The appeal preferred also came to be dismissed. 9. This second appeal was admitted to be heard by an order passed on 03.10.2005 on the following substantial questions of law:- “(i) Whether the provisions enumerated under Order 8, Rule 1 C.P.C. are too exhaustive to cover the case of a defendant under the exception of disability as provided under Order 8 Rule 5 of the Code of Civil Procedure ? (ii) Whether a defendant is entitled to contest the Suit by taking part in the hearing of the suit without filing his/her Written Statement ? (iii) Whether the provisions under Order 8 Rule 10 to pass ex parte Judgment and ex parte decree are subject to the exception of disability as provided under Order 8, Rule 5 C.P.C. ?” 10. Mr. Kataki, learned counsel for the plaintiff submits that substantial questions of law formulated may not be very appropriate having regard to the issues arising in this appeal. It is submitted by him that he will not be urging aforesaid substantial questions of law and prays for framing a substantial question of law to the effect as to whether defendant can be denied the opportunity of filing written statement on the ground that 90 days for filing written statement had expired even though sufficient cause is shown for the inability to file written statement and whether such denial vitiates the decree. 11. Upon hearing Mr. Kataki, the following substantial question of law is framed :- “Whether defendant can be denied the opportunity of filing written statement on the ground that 90 days for filing written statement had expired in a case where good cause is shown for the inability to file written statement and whether such denial vitiates the decree?” 12. Once a fresh substantial question of law is formulated, the learned counsel for the respondent is required to be put on notice of the formulation of the new substantial question of law. However, as the learned counsel for the respondent has chosen to remain absent for two consecutive days and the proceeding is taken ex parte against the respondent, bringing the formulation of the new substantial question of law to the notice of the counsel of the respondent is obviated. However, as the learned counsel for the respondent has chosen to remain absent for two consecutive days and the proceeding is taken ex parte against the respondent, bringing the formulation of the new substantial question of law to the notice of the counsel of the respondent is obviated. 13. It is submitted by Mr. Kataki that while it is correct that a number of petitions were filed for grant of adjournment to enable the defendant to file written statement, the same were occasioned due to ailment of the defendant, which also had necessitated hospitalization. It is submitted that being satisfied about the reasons for which the defendant could not take steps earlier in Misc.(J) Case No.2/2003, vide order dated 31.10.2003, the learned Trial Court had set aside the ex parte decree. 14. It is also submitted that the learned lower Appellate Court had rejected the appeal preferred holding that Order 8 Rule 1 C.P.C. does not permit the Court to accept written statement beyond 90 days and therefore, took the view that no illegality was committed by the learned Trial Court by disallowing the defendant to file written statement beyond the statutory period. In respect of his submission that Order 8 Rule 1 C.P.C. is not mandatory but directory and that if exceptional circumstances are made out, it will be permissible to allow the defendant to file written statement beyond the statutory period, he relies upon a judgment of the Apex court in the case of Zolba Vs. Keshao and Ors., reported in (2008) 11 SCC 769 . Mr. Kataki also submits that if one opportunity is granted to the appellant to file written statement, she will invariably file the written statement on the date fixed. 15. I have considered the submission of Mr. Kataki and have perused the evidence on record. 16. Keshao and Ors., reported in (2008) 11 SCC 769 . Mr. Kataki also submits that if one opportunity is granted to the appellant to file written statement, she will invariably file the written statement on the date fixed. 15. I have considered the submission of Mr. Kataki and have perused the evidence on record. 16. At the outset, it will be appropriate to notice Order 8 Rule 1 C.P.C and therefore, the same is quoted hereinbelow: “The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.” 17. Interpreting Order 8 Rule 1 C.P.C., in Salem Advocates Bar Association, T.N. Vs. Union of India, reported in (2005) 6 SCC 344 , the Apex Court laid-down as follows:- “The use of the word “shall” is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The use of the word “shall” in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. The object which is required to be served by this provision and its design and context in which it is enacted has to be ascertained. The rule in question being one of procedure is made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure is the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice. In construing this provision, support can also be had from Order 8 Rule 10. On failure to file written statement under this provision, the court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to the suit as it thinks fit. In construing this provision, support can also be had from Order 8 Rule 10. On failure to file written statement under this provision, the court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to the suit as it thinks fit. In the context of the provision, despite use of the word “shall” in Order 8 Rule 1, the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if the written statement is not filed and instead pass such order as it may think fit in relation to the suit in Order 8 Rule 10. In construing the provision of Order 8 Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Order 8 Rule 10, the court in its discretion would have the power to allow the defendant to file written statement even after expiry of the period of 90 days provided in Order 8 Rule 1. There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The court has wide power to “make such order in relation to the suit as it thinks fit”. Clearly, therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file written statement is directory. However, it is necessary to clarify 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.” 18. In Zolba (Supra), the view expressed in Salem Advocates Bar Association (Supra) is reiterated. 19. Mr. Kataki is correct in his submissions that the learned lower Appellate Court took a view that Order 8 Rule 1 C.P.C. does not permit the Court to accept the written statement beyond 90 days. In Zolba (Supra), the view expressed in Salem Advocates Bar Association (Supra) is reiterated. 19. Mr. Kataki is correct in his submissions that the learned lower Appellate Court took a view that Order 8 Rule 1 C.P.C. does not permit the Court to accept the written statement beyond 90 days. It is no longer res integra that provision of Order 8 Rule 1 C.P.C. is not mandatory but directory and court in its discretion would have the power to allow the defendant to file written statement even after the expiry of 90 days from the date of service of summons in exceptional cases. 20. Thus, it will be open to the Court to exercise discretion to permit the defendant to file written statement beyond the period of 90 days if exceptional circumstances have been made out. However, legislature having fixed the upper time-limit of 90 days, the discretion has to be exercised judiciously and not in a routine manner so as not to render the period fixed illusory. In our adversarial system of litigation, shutters must not be pulled down to deprive the defendant the opportunity of participating in the process of justice dispensation if exceptional cause is shown for not being able to file the written statement within the period as prescribed in Order 8 Rule 1 C.P.C. 21. The sequence of events has already been noted. After the ex parte decree dated 05.06.2003 was set aside vide order dated 31.10.2003 in Misc.(J) Case No.2/2003, 19.12.2003 was the first date fixed for appearance. There is no material to indicate that the defendant was suffering from any serious disability during the period 30.10.2003 to 19.12.2003. Ex parte decree was set aside at her instance on 31.10.2003 and in these circumstances, when the date was fixed for appearance on 19.12.2003, she ought to have filed the written statement. However, the learned Trial Court, on 19.12.2003, acceded to the prayer of the defendant for grant of time to file written statement on the ground that the defendant was busy in the treatment of her mother-in-law. In the said petition, no particulars were given with regard to treatment of the mother-in-law. On 29.01.2004 and 09.02.2004, the ground cited for adjournment was on account of her illness. In the petition filed on 05.03.2004, it was mentioned that she was undergoing treatment at Guwahati. In the said petition, no particulars were given with regard to treatment of the mother-in-law. On 29.01.2004 and 09.02.2004, the ground cited for adjournment was on account of her illness. In the petition filed on 05.03.2004, it was mentioned that she was undergoing treatment at Guwahati. Same was the ground given on 16.03.2004 as well as on 24.03.2004. On 24.03.2004, the learned Trial Court had rejected the petition filed for grant of time to file written statement as last chance was given and fixed the case for ex parte hearing. A petition was filed for vacating the said order by the learned counsel for the defendant. The said petition No.273/2004 was rejected by the learned Trial Court on the ground that on 16.03.2004, the learned court had rejected the prayer for grant of time to file written statement. 22. Perusal of the order dated 16.03.2004 goes to show that while filing the petition No.240/2004, a medical certificate was also enclosed. It is not that the Court below had disbelieved the medical certificate or that any doubt was expressed with regard to illness of the defendant as projected in the petitions. 23. Merely because a last chance was given, the same may not warrant rejection of prayer for further time if exceptional cause is shown. If a petition for grant of time to file written statement is rejected only on the ground that last chance was granted earlier though the petition, otherwise, has merit, the same will cut at the very root of justice delivery system. It all depends on the cause shown and if the cause shown justifies grant of further time to file written statement, then the fact that a last chance was given earlier cannot be a deterrent to pass appropriate orders granting further time. Orders in the nature of “last chance” are, in essence, orders “in terrorem”, so that dilatory litigants might put themselves in order and do not take recourse to procrastination, and on a just cause being shown, the courts are always empowered to grant further time. 24. It appears from the materials on record that the defendant was suffering from uterine bleeding. It is also noticed that while filing the petition on 24.03.2004, the written statement was also filed, which was, however, returned to the defendant. 25. These aspects of the matter were not at all considered by the learned courts below. 24. It appears from the materials on record that the defendant was suffering from uterine bleeding. It is also noticed that while filing the petition on 24.03.2004, the written statement was also filed, which was, however, returned to the defendant. 25. These aspects of the matter were not at all considered by the learned courts below. Having regard to the materials on record and the cause shown, I am of the considered opinion that the defendant ought to have been granted one opportunity to file the written statement. Failure to grant time to the defendant to file written statement, in the circumstances of the case, has vitiated the impugned judgments and decrees. 26. In view of the above position, the impugned judgments and decrees of the learned courts below are not sustainable in law and they are set aside. The appeal is allowed. However, in the facts and circumstances of the case, I am of the considered opinion that defendant is liable to pay cost, which is quantified at Rs.5,000/-. 27. Having regard to the long distance of time that has elapsed, it is directed that the learned Trial Court will dispose of the suit within a period of 6(six) months from the date of receipt of the records. The defendant will file her written statement on or before 16th of September, 2015 along with a certified copy of this order. It is made clear that no further opportunity shall be granted to the defendant to file written statement. The amount of cost shall also be deposited before the learned Trial Court on or before 16th of September, 2015 and the cost shall be paid to the plaintiff. The learned Trial Court will grant opportunity to the plaintiff to adduce further evidence if he so desires. 28. Registry will send back the records forthwith so that records are received by the learned Trial Court before 16th of September, 2015.