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2018 DIGILAW 1441 (GAU)

Dipak Sharma v. Ashok Kumar Sancheti

2018-09-26

KALYAN RAI SURANA

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JUDGMENT : KALYAN RAI SURANA, J. 1. Heard Mr. N.N. Jha, learned counsel for the petitioner as well as Mr. J. Chopra, learned counsel for the respondent. 2. By this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 10.04.2017, passed by the learned Civil Judge No. 2, Kamrup (M), Guwahati in Money Suit No. 3/2017, by which the petition for adjournment was refused by holding that time for filing written statement cannot be extended as the ground shown in the petition No. 1870 dated 10.04.2017 is not justifiable and the suit was order to proceed for plaintiffs evidence by permitting the petitioner to participate in the proceedings. Also in challenge is the order dated 16.11.2017, passed by the learned Civil Judge No. 2, Kamrup (M), Guwahati, thereby dismissing petition No. 3145 i.e. Misc. (J) Case No. 500/2017 in M.S. No. 3/2017, which was an application filed under Order IX Rule 7 read with Section 151 CPC with prayer to vacate the order of ex-parte proceeding against the petitioner and to accept the written statement by showing cause. 3. The learned counsel for the petitioner submits that he has explained the reason for not been able to file the written statement on the date fixed. It is submitted that along with the petition under Order IX Rule 7 CPC, the written statement of the petitioner was also enclosed and, as such, on 15.06.2017, when the petition under Order IX Rule 7 read with Section 151 CPC being Misc. (J) Case No. 500/2017 was filed, the written statement of the petitioner was on record. However, the learned trial court held that the ground shown in petition No. 3145 i.e. Misc. (J) Case No. 500/2017 was contrary to the grounds taken in petitions No. 1332 dated 09.03.2017 and 1862 dated 07.04.2017, which were contrary to each other. Hence, by holding that the petitioner has not been unable to show good cause, the written statement was not accepted by the learned trial court. 4. It is further submitted that as the written statement has been filed, by accepting the same, no prejudice would be caused to the respondent because with the passing of the order dated 10.04.2017, the learned trial court did not exercise power under Order VIII Rule 10 CPC to give judgment in the suit in the absence of his written statement. 5. 5. In support of his submission, the learned counsel for the petitioner has placed reliance on the case of Salem Advocate Bar Association, Tamilnadu Vs. Union of India, AIR 2005 SC 3353 and the case of the Commissioner, Bangalore Development Authority Vs. Narayana (Dead) by LRs & Ors. 6. Per contra, the learned counsel for the respondent has referred to his affidavit-in-opposition filed on 24.09.2018 and it is submitted that on all the occasion when adjournment was sought for, the petitioner had assigned different reasons. It is submitted that on 09.03.2017, an adjournment was sought for on the ground that certain documents were very much necessary to be filed with the written statement could not be processed, for which the written statement could not be prepared and filed. However, the written statement filed with Misc. (J) Case No. 500/2017 was not accompanied with any document. Hence, the plea for seeking adjournment was fake. On 07.04.2017, it was projected that the petitioner was out of station for which he could not come and sign the written statement, for which the same could not be filed. But on 10.04.2017, a ground was taken that the entire file had been misplaced from the chamber, for which the written statement could not be prepared and filed. It is submitted that if written statement was ready, a soft copy would be available in computer whenever it was typed which could have been filed. It is submitted that in the application under Order IX Rule 7 CPC, reliance was placed on the written instruction purportedly from the employer of the petitioner, without annexing the same, asked him without disclosing the work site not to leave the work site. It is submitted that all the reasons for seeking adjournment are different and contrary to each other. 7. It is further submitted that on 10.4.2017 while seeking adjournment on the ground that the file was lost, a statement was made before the learned trial court to the effect that the petitioner had applied for certified copies of the entire case record. Accordingly, by filing a RTI application, the respondent has sought for information and as per the RTI reply received from the office of the learned trial court, it was revealed that no certified copy was applied for by any one in connection with M.S. No. 3/2017 for a period from 9.1.2017 to 15.06.2017. Accordingly, by filing a RTI application, the respondent has sought for information and as per the RTI reply received from the office of the learned trial court, it was revealed that no certified copy was applied for by any one in connection with M.S. No. 3/2017 for a period from 9.1.2017 to 15.06.2017. It is submitted that as the petitioner has set up a case built up on a false premises notwithstanding the filing of the written statement along with the petition under Order IX Rule 7 CPC, there was no good cause for which the written statement filed by the petitioner should be accepted contrary to the mandate of Order VIII Rule 1 CPC. In support of his submission, the learned counsel for the respondent has referred to the following cases, viz., (i) M/s. Seemax Construction (P) Ltd. Vs. State of India & Anr., order dated 12.12.1991, (ii) K.D. Sharma Vs. Steel Authority of India Ltd. & Ors., Civil Appeal No. 4270/2008 (order dated 09.07.2008), (iii) Mukesh Kumar Gupta Vs. Rajneesh Gupta, C.S. No. 12/2016 (order dated 13.01.2016), (iv) Mrs. Hasna Ara Begum Vs. Sri Kaushik Ranjan Das, 2015(2) GLI 118: CRP (I/O) 49/2014 (order dated 03.11.2014), (v) Harikishan Vedprakash Agarwal & Anr. Vs. Burjor Joshi & Ors. Suit No. 92/1982 (order dated 10.04.2015) and (vi) Smt. Irfana Begum Vs. Raj Kumar Agarwal & Ors: 2000 (1)AWC 242 . 8. It is further submitted that the provisions of Order IX Rule 7 CPC could not have been invoked for acceptance of the written statement and it is submitted that as different ground had taken for adjournment, this was a case where there was material suppression of fact before the learned trial court, for which the written statement was rightly refused to be accepted by the learned trial court. 9. Having considered the submission made by the learned counsel for both sides and on perusal of the materials available on record, it appears that the summons was served on the petitioner on 9.1.2017 and the petitioner had sought for adjournments on 13.2.2017, 9.3.2017 and 7.4.2017 and thereafter, on 10.4.2017, after rejecting the prayer for adjournment, the right to file the written statement was closed. The petitioner remained absent on 16.05.2017 and on 15.06.2017 along with written statement an application under Order IX Rule 7 read with Section 151 CPC was filed. The petitioner remained absent on 16.05.2017 and on 15.06.2017 along with written statement an application under Order IX Rule 7 read with Section 151 CPC was filed. On such application being filed, the learned trial court's proceeding of the suit was stayed and the said application being Misc.(J) Case No. 500/2017 was disposed of by order dated 16.11.2017. The question which is to be answered by this Court is that whether an inconsistent statement made for seeking adjournment can be a ground for refusing to accept the written statement filed along with the petition for accepting the written statement. 10. It is true that a person who has taken the inconsistent pleas will have to demonstrate before the Court that it was not for the purpose of misleading the court. In the present case in hand, one of the ground for adjournment on 07.04.2017 was that the written statement could not be filed because the petitioner was out of station and on 10.04.2017, it is submitted that the file was missing and therefore, the written statement could not be filed and for that the certified copies of the case record were applied for. From the affidavit-in-opposition filed by the respondent, it appears that as per the RTI reply by the court, the said ground is incorrect as the certified copies were never applied for by the petitioner. Therefore, the statement made before the learned trial court on 10.04.2017 is demonstrated by the respondent to be an incorrect statement made before the learned trial court. In the opinion of this Court, the previous adjournments are not the matter of scrutiny before this Court, however, the subject matter of the scrutiny before this Court are the orders dated 10.04.2017 passed in M.S. No. 3/2017 and order dated 16.11.17, passed by the learned trial court in Misc. (J) Case No. 500/2017 and in the said context, it is found that the ground for seeking adjournment on 10.04.2017 has been successfully demolished by the respondent by producing the RTI reply of the learned trial court, stating that no certified copy was applied for in respect of records of M.S. No. 3/2017. (J) Case No. 500/2017 and in the said context, it is found that the ground for seeking adjournment on 10.04.2017 has been successfully demolished by the respondent by producing the RTI reply of the learned trial court, stating that no certified copy was applied for in respect of records of M.S. No. 3/2017. Moreover, if as per adjournment petition filed on 07.04.2017, the written statement could not be signed as the petitioner was out of station, it is not disclosed why such written statement could not be filed within a couple of days after adverse orders were passed on 10.4.2017, and why the petitioner filed his written statement on 15.06.2017, after remaining absent on 16.05.2017. The remaining of absent before the learned trial court on 16.05.2017 remains un-explained. 11. Then comes up the question is that whether for a plea taken in the adjournment petition which is not found to be correct, the petitioner can be deprived of an opportunity to file the written statement? In this connection, it is seen that the learned trial court while adjudicating the application under Order IX Rule 7 CPC was aware that the written statement was accompanying the said Misc.(J) Case No. 500/2017. In this connection, the respondent in his objection had taken four major objections, amongst others. Firstly, it was stated that as per petition dated 7.4.2017, the written statement was ready, for which the matter was fixed on 10.04.2017, however, in Misc. (J) Case No. 500/2017, the averment made on 07.04.2017 was suppressed by the petitioner. Secondly, on 10.04.2017, the plea that the file was misplaced and written statement could not be prepared and filed was found to be contradictory to the petition dated 07.04.2017. Thirdly, when the petitioner can receive a letter dated 30.03.2017 on 01.04.2017, there was no reason for him not to get the written statement for signature and for swearing affidavit appended to the written statement. Fourthly, after the opportunity to file the written statement was closed on 10.04.2017, the petitioner remained absent on 16.05.2017 and no written statement was filed on the next date. 12. Fourthly, after the opportunity to file the written statement was closed on 10.04.2017, the petitioner remained absent on 16.05.2017 and no written statement was filed on the next date. 12. The learned trial court by order dated 16.11.2017, held that the petition No. 3145 was contrary to the ground taken in petition dated 09.03.2017 and 07.04.2017 and therefore, it was held that the petitioner had not been able to show a good cause for not being able to file written statement within the extended time of 10.04.2017. 13. Normally, following the ratio laid down by the Hon'ble Apex Court in the case of Salem Advocate Bar Association (supra), wherein it has been held that the procedural law is a handmaid of justice, wherein it is further held that the provisions of Order VIII Rule 1 CPC is not mandatory but directory, the courts may accept the written statement if the defendant can show a good cause for not being able to file the written statement within the time prescribed. However, when the trial court finds that the contradictory pleas are taken by the defendant, things are bound to be different. Normally, the learned trial court would accept adjournment petition filed by the counsel of the party on its face value and it is upon the trust which the court has on the counsel who are usually called as the Officer of the court, adjournments are granted without scrutinizing the correctness of the statement made when the petitions which are also signed by a counsel. Therefore, there is a definite sanctity attached to a petition filed by a counsel. However, once the court comes to a finding that the plea taken by a party was false, it has the discretion to refuse to accept the written statement, though such action may be harsh to deny a defendant an opportunity of filing his/her written statement. But the courts are required to enforce the law as it is though it may seem to be harsh. If the written statement was ready in terms of statement made in petition dated 07.04.2017, and having known that the learned trial court had rejected the prayer for filing of written statement on 10.04.2017, it was required of the petitioner to file the written statement at the earliest available opportunity after 10.04.2017 with a prayer to recall previous order to show his bona fide. 14. 14. In the present case, though the case was thereafter fixed on 16.05.2017 i.e. after a month from 10.04.2017, no steps was taken by the petitioner to file the written statement and the trial court having exercised its jurisdiction not to permit the written statement to be accepted, this Court finds no jurisdictional error in the refusal of the learned trial court to accept the written statement. 15. This Court in exercise of powers under Article 227 of the Constitution of India, does not have an unbridled power to substitute its own discretion on the orders of the learned trial court if such orders are not vitiated by jurisdictional error. Hence, the presentation of written statement on a subsequent date is a no consequence until the learned trial court accepts the written statement filed beyond the period of 90 days. 16. No doubt that procedural law is a handmaid of justice, but when the petitioner had taken contradictory which is shown be far from truth, this principle cannot be extended for the benefit of the petitioner, who has not come with clean hand by making incorrect statement. It is his own statement in the adjournment petition filed on 07.04.2017, that the written statement was ready. Thereafter, it is not open to him to cause unexplained delay in filing of written statement The plea on 10.04.2017 that the file was misplaced for which certified copy of case was applied for is shown to be a fake statement. Therefore, the question that whether for the plea taken in the adjournment petition, which is found to be incorrect, the petitioner can be deprived of any opportunity to file written statement, is answered in the affirmative and against the petitioner by holding that if it is found out that the previous plea for availing adjournment on a fake pretext was taken, the trial court would be within jurisdiction to refuse adjournment for filing written statement on the subsequent date and the learned trial court has rightly refused to accept a false statement made before it, because a false statement before a court of law cannot be encouraged. This is because the Hon'ble Supreme Court, in the case of Salem Advocate Bar Association (supra) has held that the Order IX tending time to file written statement cannot be made in routine and that the time can be extended only in exceptionally hand cases, further holding that the direction of the court to extend time shall not be frequently and routinely exercised so as to nullify the period fixed by Order VIII Rule 1 CPC. 17. In view of discussion above, this Court is not inclined to burden this order with various other citations referred by the parties. Accordingly, this revision fails and the same stands dismissed. Consequently, the interim order passed earlier shall stands vacated. 18. The parties are left to bear their own cost. 19. The parties, who are duly represented by their respective learned Counsel herein, are directed to appear before the Court of the learned Civil Judge No. 2, Kamrup (M), Guwahati on 10.10.2018 without any further notice of appearance and by producing the certified copy of this order, the parties shall seek further instructions from the said learned court.