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Himachal Pradesh High Court · body

2016 DIGILAW 824 (HP)

Rajesh v. Budhi Ram

2016-05-17

DHARAM CHAND CHAUDHARY

body2016
JUDGMENT : Dharam Chand Chaudhary, J. Respondents-plaintiffs are duly served, however, opted for not putting appearance. 2. Challenge herein is to the order passed on 12.1.2016, whereby learned Civil Judge (Senior Division), Theog, District Shimla has declined further opportunity sought for filing written statement by the petitioner herein (defendant in the trial Court) and ordered to strike off his defence. 3. The perusal of the impugned order reveals that learned trial Court taking note of the statutory period of 90 days, prescribed under Order 8 Rule 1 of the Code of Civil Procedure for filing written statement having already expired, has ordered to strike off the defence of the petitioner-defendant. 4. It has been claimed that the petitioner-defendant is working out of Shimla District in a private organization. Since he could not get the leave well in time, therefore, the written statement, which was already drafted, could not be signed by him within the period prescribed therefore and as such filing of the same was delayed due to the circumstances beyond his control. 5. In this case the certified copy of notice placed on record reveals that the petitioner-defendant was served for 13.10.2015, the date fixed by the trial Court. The notice was received by him on 3.10.2015. In terms of Rule 1 of Order 8 of the Code of Civil Procedure, the written statement to a suit is required to be filed within 30 days from the date of service of the notice or at the most within 90 days from the date of receipt of notice for the reasons to be recorded in writing. The written statement, therefore, should have been filed on or before 2nd January, 2016. The certified copy of order sheet placed on record, however, reveals that the matter for filing written statement was fixed on 7.12.2015, on which date the time for filing written statement was further extended up to 12.01.2016. Meaning thereby that the trial Court has itself extended the time beyond 90 days for filing the written statement. The suit when came to be listed on 12.1.2016 for filing written statement, the prayer for further extension of time was declined and the defence of the petitioner-defendant ordered to be struck off. 6. Meaning thereby that the trial Court has itself extended the time beyond 90 days for filing the written statement. The suit when came to be listed on 12.1.2016 for filing written statement, the prayer for further extension of time was declined and the defence of the petitioner-defendant ordered to be struck off. 6. This takes us to consider and discuss as to whether the time beyond 90 days for filing written statement as prescribed under Order 8 Rule 1 CPC cannot be extended further by the Court seized of the matter. 7. It is worthwhile to mention here that the purpose to fix a time schedule for filing written statement is to expedite the hearing and not to scuttle it. The Apex Court in Kailash Vs. Nanhku, (2005) 4 SCC 480 has held that the provision contained under Order 8 Rule 1 CPC is directory and not mandatory. Therefore, the Court seized of the matter for the reasons to be recorded in writing may allow to file written statement beyond the period of 90 days, if in its opinion the same is required for just decision of the case. Also that, in ordinary course the time schedule as provided under Order 8 Rule 1 CPC has to be followed as a Rule and departure there from is an exception. The relevant text of this judgment reads as follows: “46……………………. (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 there from 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 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.” 8. Similar is the view of the matter taken by Hon’ble Supreme Court in Salem Advocate Bar Association Vs. Union of India, AIR 2005 SC 3353 : (2005) 6 SCC 344 . This judgment also reads as follows: “21. The use of the word 'shall' in Order VIII Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. 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 rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are 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 are handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice. 22. In construing this provision, support can also be had from Order VIII Rule 10 which provides that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. 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 suit as it thinks fit. 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 suit as it thinks fit. In the context of the provision, despite use of the word 'shall', the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII Rule 1. There is no restriction in Order VIII 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 VIII Rule 1 providing for upper limit of 90 days to file written statement is directory. Having said so, we wish to make it 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 VIII Rule 1. Section 39” 9. A larger Bench of Apex Court in R.N. Jadi Vs. Subhas Chandra (2007) 6 SCC 420 , has held that extension of time in departure of the prescribed limit is not automatic, however, the same can be granted for the reasons to be recorded in writing and on being satisfied that the reasons put forth to substantiate the failure to file the written statement within the specified period are justifiable. Support is being drawn from the following text of this judgment: “14. It is true that procedure is the handmaid of justice. Support is being drawn from the following text of this judgment: “14. It is true that procedure is the handmaid of justice. The court must always be anxious to do justice and to prevent victories by way of technical knock-outs. But how far that concept can be stretched in the context of the amendments brought to the Code and in the light of the mischief that was sought to be averted is a question that has to be seriously considered. I am conscious that I was a party to the decision in Kailash vs. Nankhu and others ( 2005 (4) SCC 480 ) which held that the provision was directory and not mandatory But there could be situations where even a procedural provision could be construed as mandatory, no doubt retaining a power in the court, in an appropriate case, to exercise a jurisdiction to take out the rigor of that provision or to mitigate genuine hardship. It was in that context that in Kailash vs. Nankhu and others (supra) it was stated that the extension of time beyond 90 days was not automatic and that the court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from the time limit fixed by the Code and the power inhering in the court in terms of Section 148 of the Code. Kailash is no authority for receiving written statements, after the expiry of the period permitted by law, in a routine manner. 15. A dispensation that makes Order VIII 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 emphasize 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 VIII Rule 1 must be adhered to and that only in rare and exceptional cases, 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) 1 All E.R. 543] 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?” 10. Similar is the ratio of the judgment, again that of the Apex Court in Mohammad Yusuf Vs. Faij Mohammad and others, (2009) 3 SCC 513 . 11. The Apex Court has, therefore, authoritatively held that the provision contained under Order 8 Rule 1 CPC is directory in nature and not mandatory and that the time for filing the written statement, for the reasons to be recorded in writing, can even be extended beyond the period of limitation, of course, if the reasons set forth to explain the delay occurred in filing the written statement beyond the period of 90 days, justify such extension in departure to the time limit so fixed. 12. This Court in a recent judgment rendered on 31.3.2016 in CMPMO No. 81 of 2016, title Communist Party of India (Marxist) versus Bawa Jung Bahadur, in more or less similar circumstances has granted one more opportunity to the defendant for filing the written statement beyond the period of 90 days. This judgment reads as follows: “True it is that under Order 8 Rule 1 of the Code of Civil Procedure, a period of 90 days is prescribed for filing written statement from the date of service of the notice to the defendant, however, as per settled legal principles, the rule of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. I, therefore, allow this petition and quash the impugned order. The petitioner-defendant now to file the written statement to the suit positively within three weeks from today, failing which his defence shall stand struck off. I, therefore, allow this petition and quash the impugned order. The petitioner-defendant now to file the written statement to the suit positively within three weeks from today, failing which his defence shall stand struck off. The petition is accordingly disposed of. Pending application, if any, shall also stand disposed of.” 13. In the case in hand, poor petitioner-defendant is working out of Shimla District in a private organization to earn his livelihood. In private sector continuity in performing duties is the only priority. Since he could not get leave well in time, therefore, it is for this reason, the written statement, which otherwise was drafted and ready for filing well within the prescribed period, could not be signed by him and filed in the Court. The reasons, as disclosed, resulted in causing delay to file the written statement within the prescribed time are, therefore, cogent and reliable and in the case in hand to justify the departure from the time limit so fixed by the Code. 14. Therefore, applying the ratio of the law laid down in the judgments supra, I allow this petition and grant one more opportunity to the petitioner-defendant for filing written statement in the trial Court on the next date of hearing, which according to learned counsel is 23.5.2016. There shall be a direction to the petitioner-defendant to file the written statement in the trial Court positively on the next date, failing which his defence shall stand struck off. 8. The petition is accordingly disposed of. Pending applications, if any, shall also stand disposed of.