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2018 DIGILAW 705 (JK)

Farooq Ahmed v. Zaman Shah

2018-09-14

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. In the instant writ petition, the petitioner has assailed the impugned order (Annexure-A) dated 22.09.2017 passed by the learned Trial Court of 1st Civil Subordinate Judge, Jammu (Spl. Municipal Mobile Magistrate) Jammu, whereby the learned Court has dismissed the applications filed by the petitioner/defendant no. 2 for placing on record written statements after stipulated time of 90 days. It is stated in the instant petition that learned counsel for the petitioner had filed a Suit in the Court of learned Sub-Judge Mobile Magistrate, Jammu (under 13th FC) titled, “Farooq Ahmed vs. Zaman Shah”, which is still pending. In that suit petitioner prayed for decree for permanent prohibitory injunction, restraining the defendants from interfering in the house of the plaintiff, be passed in favour of the plaintiff and against the defendants. 2. It is stated that defendant-Zaman Shah therein filed another suit instead of filing of written statement, in the court of learned Civil Subordinate (Sub-Judge) Municipal Mobile Magistrate, Jammu titled, “Zaman Shah vs. VC JDA and others” with the prayer as follows:- “It is, therefore, most humbly prayed that keeping in view the above made submissions and those to be argued at the time of hearing, a decree as prayed for in the title of plaint may kindly be passed in favour of plaintiff and against the defendants with cost.” 3. The subsequent Suit was filed with regard to the same property, which was in question in previous suit filed by petitioner before the Sub-Judge Mobile Magistrate, Jammu. 4. It is also stated in the instant petition that the petitioner was served in the Suit, and his advocate did not file written statement for quite some time and petitioner changed the counsel and engaged Sh. A.K. Sawhney, Advocate, who filed the Vakalatnama and filed the written statement on 13th March, 2017. The application for condonation of period of 5 months and 15 days w.e.f. 26th September, 2016 to 13th March, 2017 under Section 151 CPC was prayed for, but court below dismissed the application. The aforesaid impugned order has been assailed by the petitioner on the following grounds:- (a) That the impugned order is bad and illegal in the eyes of law since the provision of order of Order 8 Rule 1 CPC J&K are directory and not mandatory. The provision or Order 8 Rule 1CPC are to expedite the proceedings, but are not punitive in nature. The provision or Order 8 Rule 1CPC are to expedite the proceedings, but are not punitive in nature. (b) That the petitioner cannot be non-suited on hyper-technical grounds. Supreme Court has time and again held that no party can be thrown out without hearing on merit and justice cannot be sidelined just on hyper-technical grounds. 5. It is further stated that the plaintiff /respondent cannot be allowed to misuse the process of law and get the decree on hyper-technical ground against settled law that the second Suit is not entertainable and must be stayed under Section 10 CPC, but the learned Court instead of returning the plaint or staying the proceeding of 2nd pending Suit, passed the impugned order. The impugned order is punitive in nature and non-suits the petitioner. Section 148 is not applicable in the present case, as the same deals with the extension of time, which the learned Court has not granted, therefore, the learned Court had to press into service Section 151 CPC and Section 5 of the Limitation Act in conjunction, therefore, the view taken by the learned Court is parochial and wrong and, therefore, the order deserves to be set aside. 6. That in absence of the written statement, the entire defence and entire story/version of the petitioner has been struck off the records on hyper-technical grounds, while as in several judgments, the Hon’ble Apex Court has time and again said that the period of 90 days is directory and not mandatory and the Court has the powers to take on record the written statement, if delay is explained. In the present case, the petitioner has explained the reasons for the delay caused. The learned Trial Court has not adverted to any law on the subject and not discussed the judgments of the Apex Court on the subject, but has passed the order arbitrarily and mechanically unmindful of the fact that conundrum is no longer res-integra. 7. Whereas counsel for respondent no.1 has supported the order impugned and stated in the objections that impugned order is an interlocutory order and the same has been passed by the Trial Court on merits and the facts and circumstances of the case and is legally correct order. There is no illegality in the order nor there is any jurisdictional error in the order impugned, as such, the petition in hand is not maintainable. There is no illegality in the order nor there is any jurisdictional error in the order impugned, as such, the petition in hand is not maintainable. That as per Order VIII Rule 1 C.P.C., it is mandatory to file written statement in the case within 30 days from the service of summons, which period can be further extended upto 90 days by the Trial Court for the reasons to be recorded in writing. The petitioner has not sought extension of time to file the written statement within statutory period and filed the written statement before the Trial Court after prescribed period of limitation with the application of condonation of delay, which the Court below after hearing both the parties rejected the application of the petitioner with a reasoned order dated 22nd September, 2017. The order is legally tenable. There is no illegality or jurisdictional error, which can be corrected by this Court in the present petition. 8. I have considered the rival contentions. 9. Order VIII Rule 1 of C. P.C reads as under :- “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.” 10. Bare perusal of this Order, it is evident that although, there is mandate of law to file written statement within maximum period of 90 days, but there is no default clause in this section as to what would be effect in case same is not filed within maximum period of 90 days. 11. Hon’ble Supreme Court in case titled, “Continental Transport Organization Pvt. Ltd. Versus ICICI Lombard General Insurance Co. Ltd.” passed in Civil Appeal No. 9836 of 2010 arising out of S.L.P.(C)No.9698 of 2010, has held as follows:- “……We have heard learned counsel for the appellant and perused the record including the application filed by the appellant for condonation of delay in filing the written statement. Ltd.” passed in Civil Appeal No. 9836 of 2010 arising out of S.L.P.(C)No.9698 of 2010, has held as follows:- “……We have heard learned counsel for the appellant and perused the record including the application filed by the appellant for condonation of delay in filing the written statement. We have also gone through the judgments of three-Judge Bench in Kailash v. Nanhku (2005) 4 SCC 480 , R.N Jadi & Brothers v. Subhashchandra (2007) 6 SCC 420 and Mohd. Yusuf v. Faiz Mohammad (2009) 3 SCC 513 to which reference has been made in the order of the Division Bench. In our view, the learned Single Judge and the Division Bench of the High Court have adopted a hyper-technical approach in dealing with the application filed by the appellant for condonation of delay in filing the written statement and misapplied the law laid down by this Court. In Kailash v. Nanhku, the three-Judge Bench considered the scope of Order VIII Rule 1 and observed:- "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. Ordinarily, the time schedule prescribed by Order 8 Rule 1 has to be honoured. The defendant should be vigilant. 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. Ordinarily, the time schedule prescribed by Order 8 Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the court. The extension of time sought for by the defendant from the court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for the asking, more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order 8 Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended. A prayer seeking time beyond 90 days for filing the written statement ought to be made in writing. In its judicial discretion exercised on well-settled parameters, the court may indeed put the defendants on terms including imposition of compensatory costs and may also insist on an affidavit, medical certificate or other documentary evidence (depending on the facts and circumstances of a given case) being annexed with the application seeking extension of time so as to convince the court that the prayer was founded on grounds which do exist. The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the court. In no case, shall the defendant be permitted to seek extension of time when the court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel. In no case, shall the defendant be permitted to seek extension of time when the court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel. The court may impose costs for dual purpose:- (i) to deter the defendant from seeking any extension of time just for the asking, and (ii) to compensate the plaintiff for the delay and inconvenience caused to him. However, no straitjacket formula can be laid down except that the observance of time schedule contemplated by Order 8 Rule 1 shall be the rule and departure there from an exception, made for satisfactory reasons only. We hold that Order 8 Rule 1, though couched in mandatory form, is directory being a provision in the domain of processual law." Two of the five propositions culled out in paragraph 46 of the judgment are also extracted below:- "(iv) The purpose of providing the time schedule for filing the written statement under Order 8 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. Though the language of the proviso to Rule 1 Order 8 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 8 Rule 1 CPC is not completely taken away. In the present case, the learned Single Judge did not even bother to advert to the law laid down in Kailash v. Nanhku and the Division Bench refused to interfere with the order only on the ground that application for condonation of delay was filed after a long time gap. In our opinion, this could not be made a ground for declining to entertain the written statement which was filed with a short delay of 6 days. In the result, the appeal is allowed. The impugned order as also the order of the learned Single Judge are set aside.” 12. In our opinion, this could not be made a ground for declining to entertain the written statement which was filed with a short delay of 6 days. In the result, the appeal is allowed. The impugned order as also the order of the learned Single Judge are set aside.” 12. In the present case, as is evident from application filed by petitioner before trial Court for condoning the delay in filing the written statements, sufficient cause for not filing the written statement in time has been given. Trial court has passed order on technical ground, without appreciating the correct law. 13. In view of above, the order of Court below is set aside; trial court shall entertain the written statement filed by petitioner subject to payment of Rs.1000/- as costs to the plaintiff. This petition is allowed.