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2019 DIGILAW 334 (HP)

Gopi Merchant v. Ujwala Chauhan

2019-03-29

SURESHWAR THAKUR

body2019
JUDGMENT Sureshwar Thakur, J. - The learned counsel appearing for the plaintiff has made a vehement espousal before this Court, that, with insertion, of, a proviso, vis-a-vis, the provisions, of, Order, 8, Rule 1 of the CPC , provisions whereof stand extracted hereinafter:- "(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 day, 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." (i) AND, hence with a peremptory mandate, standing therein engrafted, vis-a-vis, upon the failure of the validly served defendant, to, within 30 days, therefrom, rather institute, a, written statement to the plaint, (ii) thereupon, there being a bar, against the errant defendant, to, hence, thereafter institute a written statement to the plaint, (iii) unless, for reasons to be recorded, and, on payment of costs, a further time, not extending beyond 120 days, commencing, from the date of effectuation of valid service, upon, the defendant, is hence granted for the afore purpose, to the defendant, (iv) and, the afore period of 120 days, is espoused by the counsel, for, the plaintiff, to carry a complete, clear peremptory mandatoriness, (v) and, even, upon, a day elapsing therefrom, hence, the statutorily contemplated forfeiture, against, the errant defendant rather being enjoined to be meted, the, fullest deference, and, also it rather carrying an absolute sway, and legal clout, (vi) and, with the defendants hence infringing mandate thereof, thereupon, their right to institute a written statement, rather being ordered to be closed. In making the afore submission, the learned counsel for the plaintiff, has placed reliance, upon, a judgment of the Hon''ble Apex Court, rendered n a case titled as M/s SCG Contracts India Pvt. Ltd. Vs. K.S. Chamankar Infrastructure Pvt. Ltd. And Ors, Civil Appeal No. 1638 of 2019. 2. In making the afore submission, the learned counsel for the plaintiff, has placed reliance, upon, a judgment of the Hon''ble Apex Court, rendered n a case titled as M/s SCG Contracts India Pvt. Ltd. Vs. K.S. Chamankar Infrastructure Pvt. Ltd. And Ors, Civil Appeal No. 1638 of 2019. 2. However, for the reasons to be recorded hereinafter, the afore submission falters, (a) given, the Hon''ble Apex Court, in a case titled as Iridium India Telecom Ltd. vs. Motorola INC., reported in 2005(1) Scale, 42 , upon, being seized, vis-a-vis, prevalence of the afore peremptoriness, of, the relevant statutory mandate, vis-a-vis, the statutory contemplations, borne in Section 129 of the CPC , provisions whereof stand extracted hereinafter:- "129 Power of High Court to make rules as to their original Civil Procedure.- Notwithstanding anything in this Code, any High Court not being the Court of a Judicial Commissioner may make such rules not inconsistent with the Letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code." (b) and, with the hereinabove extracted, provisions of the CPC, rather commencing with an explicit non obstante clause, and, with clear legal contemplation(s), being borne therein, that, dehors the statutory provisions appertaining, to the period wherewithin, the defendant, is, to file written statement, (c) rather the High Court concerned also being statutorily empowered, to, regulate its procedure, appertaining, to, the exercise of its original civil jurisdiction, (d) and, the regulatory rules apposite therewith, not inviting the wrath, of the other purportedly alike statutory contemplations, though bearing connectivity therewith nor the regulatory rules, framed by the High Court concerned, for, hence, regulating the procedure, vis-a-vis, the trial of a suit, in the exercise, of its original civil jurisdiction, (e) also not suffering either belittlement nor dilution, (f) even if, they are in conflict with the apposite therewith other purportedly alike hence statutory contemplations, as, borne in the substantive law. Upon, the afore conundrum, the Hon''ble Apex Court in Iridium India Telecom''s case (supra) rather concluded, that, the egraftment, of, the afore statutory provisions, borne in Section 129 of the CPC, hence emanating, from a clear legislative intendment, to, obviate the rigor, of, the relevant provisions, of, the CPC, appertaining, to, the prescription(s), qua adoption, of, of procedure(s) for regulating, or for hence, processing, the civil proceedings drawn, on, the original side, of, the High Court, (a) thereupon, the apposite rules, holding prevalence, vis-a-vis, alike therewith statutory provisions, (b) more so, when the apposite governing regulatory rules, in, consonance therewith, stand, formulated by the High Court concerned. The relevant paragraph No. 38 of Iridium India Telecom''s case (supra) stands extracted hereinafter:- "38. Taking into account the extrinsic evidence, i.e. the historical circumstances in which the precursor of Section 129 was introduced into the 1882 Code by a specific amendment made in 1895, we are of the view that the non obstante clause used in Section 129 is not merely declaratory, but indicative of Parliament''s intention to prevent the application of the CPC in respect of civil proceedings on the Original Side of the High Courts." Reiteratedly, furthermore, it stand therein concluded, that, hence the rigour of the statutory mandate, carried, in the provisions borne in Order 8, Rule 1 of the CPC, even, upon, theirs holding conflict, with, the rules framed by the High Court concerned, for, hence regulating, the, procedure(s), for trial of the civil suit, on the original civil side, being diluted rather the latter rules holding prevalence. 3. Be that as it may, the afore declaration of law, has to be deferred, significantly, when the judgment relied, upon, by the learned counsel for the plaintiff, to carry forward his afore submission, apparently, has not alluded, to the decision rendered, by the Hon''ble Apex Court, in, Iridum India Telecom''s case (supra), (i) thereupon, the mandate or the ratio decidendi propounded therein, is limited only, vis-a- vis, factual scenario existing therein, (ii) and, obviously it cannot be concluded, to in any way, rather undermine the legal efficacy, of, the judgment pronounced by the Hon''ble Apex Court in Iridum India Telecom''s case (supra). Conspicuously, when there is palpable analogity, vis-a-vis, the conundrum prevailing therein, and, hereat. Conspicuously, when there is palpable analogity, vis-a-vis, the conundrum prevailing therein, and, hereat. Preeminently, also when the relevant High Court Rules, and, Orders framed in exercise of statutory jurisdiction vested, upon, it, and, rather ensuing, from, the, mandate cast under Section 129, of the CPC, make clear regulatory contemplation(s), vis-a-vis, the regulating mechanism, available, for adoption, for, the trial of the suit, on, the original civil side, as, the instant civil suit, is, being tried, on, the original side, (iii) thereupon, the mandate thereof is rather to be revered. 4. The learned counsel appearing for the plaintiffs/applicants also contended with much vigour before this Court, (a) that the H.P. High Court Rules, occurring in Chapter-VI, of, the Rules and Orders of the High Court of Himachal Pradesh (Original Side), (b) especially Rules 3 and 4, both fall in congruity, with, the pronouncement of the Hon''ble Apex Court rendered in M/s SCG Contracts India Pvt. Ltd. case (supra), Rules, rules whereof stand extracted hereinafter:- "3. Extension of time for filing written statement.- Ordinarily not more than one extension of time shall be granted to the defendant for filing a written statement; provided that a second or any further extension may be granted only on an application made in writing setting forth sufficient grounds for such extension and supported, if so required, by an affidavit. 4. Procedure where no written statement is filed by an defendant.- If the defendant or all the defendants in a suit have failed to file his or their written statements within the time allowed under rules 2 and 3 or any time extended by order, the suit shall be set down for final disposal on the next or subsequent short cause day. Should the defendant or one or more of several defendants then appear and show good cause for his or their default, he or they may be allowed to defend on payment to the plaintiff of such costs, if any, as may be awarded and the suit may be transferred to long causes or may be postponed." He further contends, that also, in concurrence therewith, hence, the wrath of forfeiture, befalling upon the errant defendants, (c) thereupon, this Court rather proceed to close any further opportunity, to, the defendant, to, institute a written statement. However, the afore submission warrants its rejection, (d) given Rule 3, prescribing qua ordinarily, not more than, one extension of time, being granted to defendant, to, institute written statement, (d) and, with an exception therewith hence occurring in the latter portion thereof, with, a, prescription, that, the second or any further extension, for, the afore purpose, rather being grantable, only upon, an application being made in writing, setting forth sufficient grounds for such extension, and, supported, if so required, by an affidavit. However, the afore exception, to the, opening sentence of Rule 3, and, with, the, exception hence contemplating, that, a second or any further extension, being grantable, to the errant defendants, does obviously, enhance a conclusion, qua the afore rule, rather not limiting or restricting the number of extensions hence being meteable to the defendants. However, the meteings, of, a second or a further extension hence to the defendants,rather emanating, only upon an application being filed in writing, setting forth therein sufficient grounds, for such extension, and, supported, if required, by an affidavit. However, the meteings, of, a second or a further extension hence to the defendants,rather emanating, only upon an application being filed in writing, setting forth therein sufficient grounds, for such extension, and, supported, if required, by an affidavit. Nonetheless, no construction can be made, upon, the afore opening sentence of the Rule 3, that, even upon, an, errant defendant hence engaging a counsel, thereupon, the counsel being also enjoined, to, on every occasion, of, his endeavouring, to, seek, extensions, his being enjoined, to, throughout institute an application, for, the relevant purpose, and, in the making, of, the relevant endeavour(s), (e) rather the afore exception, to, the opening sentence of Rule 3, is, workable only against the errant defendants, who, appears in person before the High Court, and, has not engaged any counsel, also thereupon, any grants, of, leave to, institute written statement, is, made subject to a payment of costs, to the plaintiff, (f) thereupon, on a comprehensive indepth analysis, of, the hereinabove extracted rules, renders, an inference qua, it, not entailing any ill-consequence of forfeiture hence working against the errant defendants, sparked by theirs/his omitting, to file written statement to the plaint, (g) as a corollary, the judgment relied, upon by the counsel for the plaintiffs, is not, in conformity therewith, rather the judgment relied, upon by the counsel for the defendants, is in conformity, with, the hereinabove extracted apt portion of the High Court Orders and Rules, and, also the conforming therewith, hence the hereinabove extracted portion of the High Court Orders and Rules, rather hold clout and sway, besides preponderance vis-a-vis, the proviso engrafted in Order 8, Rule 1 of the CPC, as, relied, upon in M/s SCG Contracts India Pvt. Ltd. Case (supra). 5. Be that as it may, a perusal of the record discloses that on 30.08.2018, Mr. Pranay Pratap Singh, Advocate, under memo of appearance, has put in appearance on behalf of defendant No.2, before this Court, (a) and, this Court proceeded to grant, hence, two weeks'' time to file power of attorney, on his behalf, and, also, granted four weeks'' time to file written statement, to the plaint. Thereafter the matter was listed before this Court, on 13.11.2018, whereat this court rendered an order, for, meteing compliance, vis-a-vis, the orders rendered, on 30.08.2018. Thereafter the matter was listed before this Court, on 13.11.2018, whereat this court rendered an order, for, meteing compliance, vis-a-vis, the orders rendered, on 30.08.2018. On 3.1.2019, when the matter was listed before this Court, a further time of two weeks'' stood granted, for, instituting written statement, to the plaint,, subject to any objections, vis-a-vis, attraction, of, the amended provisions of Order 8, Rule 1, CPC, vis-a-vis, granting, of, further relevant opportunities, rather, being reared by the counsel for the plaintiff. Thereafter, the instant application bearing OMP No. 67 of 2019, stands instituted before this Court. 6. From the afore unfoldments, borne in the afore referred orders, it, is, befitting to grant time, for, the relevant purpose, and, thereupon, the exception to Rule 3, for further time being granted, rather holds leanings, vis-a-vis, the errant defendants. 7. For the foregoing reasons, there is no merit in the instant application, and, it is dismissed accordingly.. Consequently, four weeks'' time is granted to the defendant(s) to institute written statement to the plaint, however, subject to costs of Rs. 5000/-.