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2018 DIGILAW 2070 (HP)

Usha Rani v. Keshwa Nand

2018-11-22

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J. - Having regard to the nature of the order this Court proposes to pass in the given facts and circumstances of the case, it deems it not necessary to issue notice to the respondent because it would not only cause inconvenience to him, rather he would be unnecessarily burdened to engage counsel to represent him in the instant proceeding. 2. Being aggrieved and dissatisfied with order dated 25.9.2018 (Annexure P5), passed by learned Civil Judge, Court No.3, Una, District Una, H.P., whereby right of the petitioner to file written statement (hereinafter referred to as the defendant) has been struck of, petitioner defendant has approached this Court in the instant proceedings filed under Article 227 of the Constitution of India, seeking therein permission to file written statement within the stipulated period after setting aside the impugned order, referred hereinabove. 3. Having heard learned counsel for the petitionerdefendant and perused the material available on record visavis impugned order passed by the learned court below, this Court finds no illegality and infirmity in the order passed by the learned court below because admittedly impugned order reveals that petitionerdefendant failed to file written statement well within prescribed period of 120 days. However, averments contained in the petition, suggest that petitionerdefendant after having received summons on 7.10.2017 put in appearance for the first time through her counsel on 08.11.2017 when matter was adjourned to 12.12.2017 with the direction to the petitionerdefendant to file written statement. However, fact remains that petitionerdefendant failed to file written statement within that period and as such, case came to be adjourned to 13.3.2018. 4. Mr. Dheeraj K. Vashishat, learned counsel representing the petitionerdefendant states that since case was adjourned to 13.3.2018, petitionerdefendant remained under impression that she is to file written statement on or before 13.3.3018 and as such, on 13.3.32018 she moved an application under Section 148 read with Section 151 CPC, seeking therein enlargement of time to file written statement. Alongwith aforesaid application petitionerdefendant also filed written statement, however aforesaid application came to be rejected on the ground that since written statement has been filed after lapse of more than 157 days , same cannot be taken on record. 5. True, it is that as per Civil Procedure Code, written statement at first instance can be filed within a period of 30 days which can be further enlarged by 60 days. 5. True, it is that as per Civil Procedure Code, written statement at first instance can be filed within a period of 30 days which can be further enlarged by 60 days. However, Section 148 CPC empowers Court to enlarge the time not exceeding thirty days in total for doing of any act prescribed or allowed by Civil Procedure Code, even though the period originally fixed or granted may have expired in case Court deems it fit in its discretion. Otherwise also, Hon'' ble Apex Court in Salem Advocate Bar Association, T.N. versus Union of India, (2005)6 Supreme Court Cases 344, has held that 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. Hon''ble Apex Court has categorically held in the aforesaid judgment that the rules or procedure are handmaid of justice and not its mistress. While interpreting the word "shall" as provided Order 8 Rule 1, Hon''ble Apex Court has held that though 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 relevant paras of the judgment is reproduced hereinbelow:: "20. 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. 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. 21. 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. 21. In construing this provision, support can also be had from Order 8 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. 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 8 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 8, 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 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 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 time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. 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 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." 6. Consequently, in view of the aforesaid provisions of law, the present petition is allowed and order dated 25.9.2018, passed by learned Civil Judge, Court No.3, Una, District Una, H.P, is quashed and setaside. The present petitionerdefendant is permitted to file written statement subject to payment of cost amounting to Rs.7500/ payable to the respondent/plaintiff. Learned counsel representing the petitioner informs this Court that matter is already listed before the learned court below on 17.12.2018, on which date, court below shall take on record written statement filed by the defendant subject to cost, as quantified hereinabove, payable to the respondentplaintiff. However, it is made clear that in case written statement is not filed on that date, no more opportunity would be provided and impugned order dated 25.09.2018 would automatically revive. Pending application(s), if any, also stands disposed of. Copy dasti.