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Himachal Pradesh High Court · body

2018 DIGILAW 2091 (HP)

Ajay Dalmia v. Mayank

2018-11-27

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J. - Being aggrieved and dis-satisfied with order dated 3.4.2017, passed by the learned Civil Judge, (Jr. Div.) Court No.4, Shimla, H.P., whereby defence of the petitioners-defendants (herein after referred to as the "defendants") have been closed, defendants have approached this Court in the instant proceedings filed under Article 227 of the Constitution of India, praying therein for grant of one opportunity to file written statement after setting aside the impugned order referred herein above. 2. Having heard learned counsel for the parties and perused the material available on record vis--vis impugned order passed by the learned court below, this Court finds no illegality and infirmity in the impugned order because admittedly, defendants failed to file written statement well within the period prescribed under Order 8 Rule 1 CPC, however averments contained in the petition suggest that service upon defendant Nos.1 to 4 was effected on 20.12.2016 and as per provision of Order 8 Rule 1 CPC, written statement was to be filed within a period of 90 days. Petitioner has averred that due to untimely death of their cousin at Delhi, they failed to file written statement well within the stipulated period. Suit was listed before the court below on 23.3.2017, on which date, court below granted time for filing the written statement and adjourned the matter to 16.3.2017, however, fact remains that on 16.3.2017, Presiding Judge was on leave and accordingly, matter was listed for proper order on 3.4.2017. But on that day, court below instead of issuing notice to the parties passed effective order i.e. impugned order, whereby defence of defendants came to be struck of. 3. Mr. Vijay Arora, learned counsel representing the petitionersdefendants states that since case was adjourned to 16.3.2017, on which date presiding Judge was on leave, defendants remained under the impression that on that date, written statement would not be taken on record, rather notices would be issued to the parties intimating therein the next date of hearing. On 3.4.2017, defendants also moved an application under Section 148 read with Section 151 CPC, seeking therein enlargement of time to file written statement, however same came to be dismissed. 4. 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. 4. 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. 5. Otherwise also, Hon''ble Apex Court in Salem Advocate Bar Association, T.N. versus Union of India , (2005) 6 SCC 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 herein-below:- "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 extending 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 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 8 Rule 1." 6. Consequently, in view of the aforesaid provisions of law, present petition is allowed and order dated 3/4/2017, passed by learned Civil Judge, (Jr. Div.) Court No.4, Shimla, District Shimla, H.P, is quashed and set-aside and one last opportunity is provided to the defendants to file written statement. Let matter be listed before the court below on 28.11.2018, to enable the defendants to file the written statement. 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 3.4.2017 would automatically revive. Learned counsel for the parites, undertake to cause appearance of the parties on the aforesaid date before the court below. Registry is directed to apprise the learned court below with regard to passing of the instant order to enable it to proceed further with the matter. Interim order dated 17.11.2017, is vacated. Pending application(s), if any, also stands disposed of. Authenticated copy.