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2016 DIGILAW 1081 (JHR)

Anant Kumar Pandey v. Md. Athar Hussain

2016-07-19

RAVI NATH VERMA

body2016
ORDER : 1. The defendant no.1 has preferred this writ application against the order dated 10.10.2012 passed by Civil Judge, (Sr. Division)-I, Koderma in Title Suit no. 01 of 2012 whereby he has been debarred from filing the written statement but he was allowed to cross-examine the witnesses of the plaintiff. 2. Heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondents. 3. It is not necessary to go into the details of the pleadings of the parties. After appearance, a petition with condonation petition was filed on 23.08.2012 by the defendant no.1 with prayer to accept the written statement filed by him but after hearing the parties, the court below by impugned order rejected his prayer and debarred the defendant no.1- petitioner from filing the written statement. Hence this writ application. 4. Learned counsel appearing for the petitioner assailing the order impugned as bad in law seriously contended that the court below failed to appreciate that from order-sheet of court below dated 08.06.2012 enclosed with supplementary affidavit as Anneuxre-4, it would appear that the case was fixed for 23.08.2012 for filing of the written statement, accordingly, on the next date, the written statement was filed, the court below directed to place the same on the record but subsequently by the order impugned, the defendant no.1 was debarred from filing the written statement. It was also submitted that a procedural law should not ordinarily be construed as mandatory rather the procedural law is always subservient to and is in aid to justice and further submitted that the proviso appended to Rule 1 of Order VIII of C.P.C. is circumscribed by the words “shall not be later than ninety days” but the consequences flowing from non-extension of time are not specifically provided. 5. Learned counsel appearing for the respondents though opposed the prayer but fairly submitted that he has no objection if the written statement filed at the instance of defendant no.1-petitioner is accepted with some cost and further submitted that the court below may be directed to expedite the disposal of the suit. 6. I find force in the submission of the learned counsel appearing for the petitioner that vide order dated 08.06.2012, the case was fixed for 23.08.2012 and the defendant no.1 was directed to file written statement. Accordingly, the same was filed on the next date. 6. I find force in the submission of the learned counsel appearing for the petitioner that vide order dated 08.06.2012, the case was fixed for 23.08.2012 and the defendant no.1 was directed to file written statement. Accordingly, the same was filed on the next date. It is true that even after completion of 90 days, the written statement was not filed but some ground was stated for non-filing of the written statement. In the instant case, the trial court proceeded on the premises that unless there is satisfactory explanation, the written statement cannot be accepted after 90 days. I have considered the grounds indicated by the petitioner seeking acceptance of the written statement filed belatedly. They cannot be considered to be trivial or without substance as the same has not been denied by the plaintiff-respondents. It is well settled that the procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant and not a resistant in the administration of justice. In a case Kailash Vs. Nankhu and others; (2005) 4 SCC 480 [: 2005(4) JLJR 9 (SC)1], the Hon’ble Supreme Court held that the time schedule provided under Order VIII Rule 1 of C.P.C. is directory in nature but it does not impose an embargo on Court’s power for extension of time, however, to be granted only in exceptional cases. 7. In the said circumstance, the order impugned is, hereby, set aside and the court below is directed to accept the written statement filed at the instance of the defendant no.1 on payment of cost of Rs.1,000/- to the plaintiffs-respondents. The trial court is further directed to expedite the trial of the suit. 8. The Writ Petition is, accordingly, allowed.