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2017 DIGILAW 954 (JHR)

Dhana Munda v. Sheikh Asruddin Ansari

2017-06-19

RAJESH SHANKAR

body2017
JUDGMENT : Heard learned counsels for the parties. 2. The present writ petition has been filed for quashing the order dated 21.07.2004 passed by the learned Munsif, Ranchi in Title Suit No. 118/2002 whereby, the petition for recall of the order dated 08.09.2003 has been dismissed. The petitioners have also prayed for recalling the order dated 08.09.2003 whereby, the learned Munsif has debarred the petitioners from filing the written statement. 3. The factual matrix of the case is that the plaintiffs/respondents filed Title Suit No. 118/2002 for declaration of their right, title and interest over the suit property and also for declaration of the sale deed dated 19.10.1966 as null and void. The petitioners appeared in the suit as the defendants on 12.08.2003 and prayed for filing the written statement. Thereafter, the matter was fixed on 08.09.2003 and on that day also, the petitioners filed time petition for filing the written statement. The learned Munsif debarred the petitioners from filing the written statement by observing that the notices issued to the petitioners were received on 09.03.2003, but the written statement has not been filed within the time prescribed under Order VIII Rule 1 C.P.C. On the next date fixed in Title Suit No. 118/2002 i.e. 23.09.2003, the petitioners filed recall petition, however, they did not press the same. Subsequently, on 13.11.2003, the petitioners filed an application under Section 151 CPC for recalling the order dated 08.09.2003 and in the said application, the plaintiffs/respondents filed their reply. Finally, the learned Munsif vide order dated 21.07.2004 rejected the application of the petitioners on the ground that the summons were served upon the petitioners on 09.03.2003 and even after lapse of 90 days on 08.06.2003, the written statement was not filed. Thus, in the present writ petition, the petitioners have challenged the orders dated 08.09.2003 and 21.07.2004 passed by the learned Munsif, Ranchi. 4. Learned counsel for the petitioners submits that the learned Munsif was wrong in debarring the defendants/petitioners from filing the written statement and counting the period of 90 days from 09.03.2003, in as much as, even after the said date, the learned Munsif did not record his satisfaction that the notices have been duly served on the defendants/petitioners. 4. Learned counsel for the petitioners submits that the learned Munsif was wrong in debarring the defendants/petitioners from filing the written statement and counting the period of 90 days from 09.03.2003, in as much as, even after the said date, the learned Munsif did not record his satisfaction that the notices have been duly served on the defendants/petitioners. Moreover, the defendants/petitioners put their appearance in the suit on 12.08.2003 and the order debarring the petitioners from filing the written statement was passed by the learned Munsif on 08.09.2003 i.e. within a period of one month from their appearance. Learned counsel further submits that the written statement on behalf of the petitioners could not be filed by 08.06.2003 owing to the fact that in spite of the best efforts of the petitioners, they could not trace some important documents needed for filing the written statement. However, those documents were subsequently traced out and the petitioners are ready and willing to contest the suit on merit. Learned counsel finally submits that in the given circumstances, the petitioners may be allowed to file their written statement in the pending suit and the impugned orders dated 08.09.2003 and 21.7. 2004 passed by the learned Munsif, Ranchi may, accordingly, be set aside. 5. Per contra, the learned counsel for the contesting respondent No.1 submits that despite the fact that the petitioners received the summons as far back as on 09.03.2003 itself and several opportunities were given to the petitioners for filing their written statement in the suit, they did not file the same and in view of Order VIII Rule 1 Code of Civil Procedure, the learned Munsif has rightly debarred the petitioners from filing the written statement in the suit. 6. Having heard the learned counsel for the parties and going through the relevant documents placed on the record, it appears that summons were served upon the petitioners on 09.03.2003. The period of 90 days from the date of receipt of summons expired on 08.06.2003. However, the petitioners put their appearance in the suit proceeding as late as on 12.08.2003 and prayed for time for filing written statement. Subsequently, on the next date fixed i.e, 08.09.2003, the petitioners again sought time for filing of the written statement and on that date, the learned Munsif debarred the petitioners from filing written statement in view of the provisions of Order VIII Rule 1 CPC. Subsequently, on the next date fixed i.e, 08.09.2003, the petitioners again sought time for filing of the written statement and on that date, the learned Munsif debarred the petitioners from filing written statement in view of the provisions of Order VIII Rule 1 CPC. Learned counsel for the petitioners puts reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Kailash Vs. Nanhku & Ors. reported in (2005) 4 SCC 480 and submits that the provisions contained in Order VIII Rule 1 CPC are directory and not mandatory in nature. It is further submitted that in exceptional situation, the Court may extend the time for filing the written statement, though the maximum period of 90 days referred in the said provision has expired. 7. The provisions of Order VIII Rule 1 CPC have been discussed by the Hon'ble Apex Court in the case of Kailash Vs. Nanhku & Ors. (Supra). The relevant paragraphs of the said judgment are quoted hereunder for better appreciation: 26. The text of Order 8 Rule 1, as it stands now, reads as under: “1. Written statement.—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.” “27. Three things are clear. Firstly, a careful reading of the language in which Order 8 Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Secondly, the nature of the provision contained in Order 8 Rule 1 is procedural. It is not a part of the substantive law. Secondly, the nature of the provision contained in Order 8 Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order 8 Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried.” “28. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar are pertinent: (SCC p. 777, paras 56) “The mortality of justice at the hands of law troubles a judge’s conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. … Justice is the goal of jurisprudence — processual, as much as substantive.” “33. As stated earlier, Order 8 Rule 1 is a provision contained in CPC and hence belongs to the domain of procedural law. … Justice is the goal of jurisprudence — processual, as much as substantive.” “33. As stated earlier, Order 8 Rule 1 is a provision contained in CPC and hence belongs to the domain of procedural law. Another feature noticeable in the language of Order 8 Rule 1 is that although it appoints a time within which the written statement has to be presented and also restricts the power of the court by employing language couched in a negative way that the extension of time appointed for filing the written statement was not to be later than 90 days from the date of service of summons yet it does not in itself provide for penal consequences to follow if the time schedule, as laid down, is not observed. From these two features certain consequences follow.” “41. Considering the object and purpose behind enacting Rule 1 of Order 8 in the present form and the context in which the provision is placed, we are of the opinion that the provision has to be construed as directory and not mandatory. In exceptional situations, the court may extend the time for filing the written statement though the period of 30 days and 90 days, referred to in the provision, has expired. However, we may not be misunderstood as nullifying the entire force and impact — the entire life and vigour — of the provision. The delaying tactics adopted by the defendants in law courts are now proverbial as they do stand to gain by delay. This is more so in election disputes because by delaying the trial of election petition, the successful candidate may succeed in enjoying the substantial part, if not in its entirety, the term for which he was elected even though he may lose the battle at the end. Therefore, the judge trying the case must handle the prayer for adjournment with firmness. The defendant seeking extension of time beyond the limits laid down by the provision may not ordinarily be shown indulgence.” 8. In the aforesaid judgment, the Hon'ble Apex Court held that the purpose of providing the time schedule for filing the written statement under Order VIII Rule 1 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. 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 Order VIII Rule 1 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 CPC is not completely taken away. 9. However, the Hon’ble Supreme Court in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. reported in (2015) 16 SCC 20 , on noticing the facts that in the case of Dr. J.J.Merchant & Ors. Vs. Shrinath Chaturvedi reported in (2002) 6 SCC 635 , has taken a different view from that of taken in the case of Kailash Vs. Nanhku & Ors. (Supra) and has held as under: “13. The question arose in J.J. Merchant whether the Forum can grant time beyond 45 days to the opposite party for filing its version. After considering the aforestated section in the light of the object with which the Act has been enacted, a three-Judge Bench of this Court came to the conclusion that in no case period beyond 45 days can be granted to the opposite party for filing its version of the case.” “14. Without discussing the aforestated three-Judge Bench judgment in detail, we now turn to another judgment which has been referred to by the referring Bench. The other judgment which has been referred to is Kailash, which pertains to Election law. The issue involved in the said case was whether time-limit of 90 days, as prescribed by the proviso to Rule 1 of Order 8 of the Civil Procedure Code, is mandatory or directory in nature. The said issue had arisen in an election matter where the written statement was not filed by the candidate concerned within the period prescribed under the relevant Election law and the issue was whether in the election trial, delay caused in filing the written statement could have been condoned. The said issue had arisen in an election matter where the written statement was not filed by the candidate concerned within the period prescribed under the relevant Election law and the issue was whether in the election trial, delay caused in filing the written statement could have been condoned. After considering the provisions of Order 8 Rule 1 of the Code of Civil Procedure, 1908 and several other judgments pertaining to grant of time or additional time for filing written statement or reply, in the interest of justice, this Court came to the conclusion that the provisions of Order 8 Rule 1 CPC are not mandatory but directory in nature and therefore, in the interest of justice, further time for filing reply can be granted, if the circumstances are such that require grant of further time for filing the reply.” “23. Upon hearing the counsel concerned and upon perusal of both the judgments referred to hereinabove, which pertain to extension of time for the purpose of filing written statement, we are of the opinion that the view expressed by the three-Judge Bench of this Court in J.J. Merchant should prevail.” “25. We are, therefore, of the view that the judgment delivered in J.J. Merchant holds the field and therefore, we reiterate the view that the District Forum can grant a further period of 15 days to the opposite party for filing his version or reply and not beyond that.” “26. There is one more reason to follow the law laid down in J.J. Merchant. J.J. Merchant was decided in 2002, whereas Kailash was decided in 2005. As per law laid down by this Court, while deciding Kailash, this Court ought to have respected the view expressed in J.J. Merchant as the judgment delivered in J.J. Merchant was earlier in point of time. The aforestated legal position cannot be ignored by us and therefore, we are of the opinion that the view expressed in J.J. Merchant should be followed.” “28. In view of the aforestated clear legal position depicted by a five-Judge Bench, the subject is no more res integra. Not only this three-Judge Bench, but even a Bench of coordinate strength of this Court, which had decided the case of Kailash, was bound by the view taken by a three-Judge Bench in J.J. Merchant”- 10. In view of the aforestated clear legal position depicted by a five-Judge Bench, the subject is no more res integra. Not only this three-Judge Bench, but even a Bench of coordinate strength of this Court, which had decided the case of Kailash, was bound by the view taken by a three-Judge Bench in J.J. Merchant”- 10. It is evident from the judgment rendered by the Hon'ble Supreme Court in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (Supra) that the law laid down by the Hon'ble Supreme Court in the case of Dr. J.J.Merchant & Ors. Vs. Shrinath Chaturvedi, (Supra) with regard to the time limit prescribed for filing the written statement by the defendants, shall prevail over the judgment rendered by the Hon'ble Apex Court in the case of Kailash Vs. Nanhku & Ors. (Supra). 11. In view of the aforesaid legal position, the ratio laid down by the Hon'ble Apex Court in the case of Dr. J.J.Merchant & Ors. Vs. Shrinath Chaturvedi, (Supra) should be applicable in the facts and circumstances of the present case. The relevant paragraphs of the said judgment are quoted hereunder: 14. For this purpose, even Parliament has amended Order 8 Rule 1 of the Code of Civil Procedure, which reads thus: “1. Written statement.—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.” (emphasis supplied) “15. Under this Rule also, there is a legislative mandate that written statement of defence is to be filed within 30 days. However, if there is a failure to file such written statement within the stipulated time, the court can at the most extend further period of 60 days and no more. Under the Act, the legislative intent is not to give 90 days of time but only maximum 45 days for filing the version by the opposite party. Therefore, the aforesaid mandate is required to be strictly adhered to.” “17. Under the Act, the legislative intent is not to give 90 days of time but only maximum 45 days for filing the version by the opposite party. Therefore, the aforesaid mandate is required to be strictly adhered to.” “17. In view of the aforesaid provisions, the Commission can certainly refer to Order 7 Rule 14 which provides that where a plaintiff sues upon a document or relies upon a document in his possession or power in support of his claim, he shall enter such document in a list, and shall produce it in the court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof to be filed with the plaint. It appears that this mandatory requirement is not followed and thereafter, there is complaint of delay in disposal. Similarly, in case of written statement under Order 8 Rule 1-A, the defendant is required to produce the documents relied upon by him when written submission is presented. The Commission can always insist on production of all documents relied upon by the parties along with the complaint and the defence version.” 12. On perusal of the impugned order dated 21.07.2004 passed by the learned Munsif, it appears that the notices were issued to the petitioners/defendants on 19.02.2003 pursuant to the order dated 22.01.2003 and the same were validly served on them on 09.03.2003. The service report was attached to the order sheet on 30.05.2003. In view of the said fact, maximum period of 90 days, as enumerated under Order VIII Rule 1 CPC, expired on 08.06.2003. However, the petitioners/defendants put their appearance in the suit as late as on 12.08.2003, which is after the mandatory period of 90 days of filing of the written statement. So far as the position of law in this case is concerned, the same has been clarified by the Hon'ble Supreme Court in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (Supra) wherein it has been clearly observed by the Hon'ble Supreme Court that the law laid down by in the case of Dr. J.J. Merchant & Ors. Vs. Shrinath Chaturvedi (Supra) is the correct law. 13. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (Supra) wherein it has been clearly observed by the Hon'ble Supreme Court that the law laid down by in the case of Dr. J.J. Merchant & Ors. Vs. Shrinath Chaturvedi (Supra) is the correct law. 13. In view of the aforesaid facts and the law discussed hereinabove, I find no reason to interfere with the impugned orders dated 08.09.2003 and 21.07.2004 passed by the learned Munsif, Ranchi in Title Suit No. 118/2002. The writ petition being devoid of merit is, accordingly, dismissed. Interim order, if any, stands vacated.