Research › Search › Judgment

J&K High Court · body

2019 DIGILAW 451 (JK)

Varinder Singh v. Sudesh Kumari

2019-10-15

RAJESH BINDAL

body2019
JUDGMENT : 1. Challenge in the present petition is to the order dated 15.01.2019 passed by the Learned Ist Additional Munsiff (Forest Magistrate), Jammu, whereby the right of the petitioner/defendant to file written statement was closed and order dated 18.09.2019, vide which the application filed by the petitioner for recalling of the order dated 15.01.2019, was dismissed. 2. Learned counsel for the petitioner submitted that the respondent/plaintiff filed a suit for permanent prohibitory injunction restraining the petitioner/defendant from interfering in any manner, whatsoever into the peaceful possession of the plaintiff or raising any sort of construction, changing the nature of the land or dispossessing the plaintiff from the land measuring 02 Kanals falling under Khasra No. 2380, situated in Revenue village Raipur Domana, Tehsil Jammu now Jammu North, District Jammu. In the aforesaid suit after service of the petitioner, he had put in appearance. Written statement was to be filed. The same was prepared and handed over to the counsel. However, he failed to file when the date of hearing was fixed for the purpose. The petitioner was not at fault as it was the mistake of the counsel that he could not file the same within the time permitted. For the default of the counsel, he should not be made to suffer. Even otherwise, the provisions of Order VIII Rule 1 CPC have been held to be directory. He further submitted that while filing the application for recalling the order, the petitioner had even annexed the written statement alongwith. The same should be taken on record. For the purpose, reference was made to judgment of Hon'ble the Supreme Court in Sandeep Thapar vs. SME Technologies Private Limited, reported as (2014) 2 SCC 302 . 3. After hearing learned counsel for the petitioner, I do not find any merit in the present petition. It is the undisputed fact on record, as is evident from the order dated 15.01.2019 passed by the learned court below, whereby the right of the petitioner to file the written statement was closed, that after service the petitioner/defendant had put in appearance on 25.08.2018 and thereafter had been seeking time to file written statement. The same having not been filed, on 15.01.2019, the court passed the following order : “Perusal of file reveals that written statement has not been filed till date since appearance of defendant through counsel on 25.08.2018. The same having not been filed, on 15.01.2019, the court passed the following order : “Perusal of file reveals that written statement has not been filed till date since appearance of defendant through counsel on 25.08.2018. The statutory period is over for filing of written statement, as such right to file written statement is hereby closed. List on 08.03.2019.” 4. In Order V, in Rule 1 CPC, in sub-rule (1), for the second proviso, the following proviso was substituted : “Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record.” 5. Order VIII Rule 1 CPC, which deals with filing of written statement and Order VIII Rule 10, are reproduced hereunder : “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 with the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry on one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record. 2-9. xxxx 10. 2-9. xxxx 10. Procedure when party fails to present written statement called for by Court Whereas 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, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. Provided that no court shall make an order to extend the time provided under Rule 1 of this order for filing the written statement.” 6. A perusal of the aforesaid provisions as inserted/substituted vide amendment carried out in CPC, vide notification dated 13.12.2018 show that ordinarily the written statement is to be filed within the period of thirty days from the date of service of summons. However, the Court can allow further time to file written statement on such other day, as may be specified by the Court, for the reasons to be recorded in writing and on payment of costs. The time so granted shall not be later than 120 days from the date of service of summons. Thereafter the defendant shall forfeit his right to file the written statement and the Court shall not allow the written statement to be taken on record. 7. In the case in hand, though the date of service of summons on the petitioner/ defendant is not forthcoming, however, the fact remains that he had put in appearance in Court on 25.08.2018 and his right to file the written statement was closed by the learned Court below vide order dated 15.01.2019. Till that date 143 days had expired, i.e. beyond the maximum period of 120 days, as provided in the amended provisions of CPC as extracted above. Hence, the same could not be taken on record. 8. The contention raised by learned counsel for the petitioner, while placing reliance on judgment of Hon'ble the Supreme Court in Sandeep Thapar's case (supra) would be misconceived at this stage for the reason that in the aforesaid judgment unamended provisions of Order VIII Rule 1 CPC were under consideration, wherein the opinion expressed by the Court was that those are directory in nature and not mandatory. It was for the reason that the consequence for non filing of written statement within the maximum permitted time had not been provided in proviso to Order VIII Rule 1 CPC. However, with the amendment of the aforesaid Rule, it has specifically been provided therein that on failure to file the written statement maximum up to 120 days, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record. Even time after expiry of 30 days till 120 days, time has to be granted for the reasons to be recorded and on payment of such costs, as the Court deems fit. Each and every word in the provision is relevant and has a meaning. 9. Not only this, the intention of the Legislator that the provisions of Order VIII Rule 1 are mandatory is further fortified with amendment carried out in Order VIII Rule 10 CPC. The proviso thereto clearly provide that no Court shall make order to extend the time provided under Order VIII Rule 1 CPC for filing of written statement. 10. The Commercial Courts Act, 2015 was enacted. Vide Schedule attached to the aforesaid Act, substantive amendments were made in CPC for the purpose of trial of suits under that Act, wherein identical provisions have been provided. Issue as to whether the written statement can be filed after 120 days, the maximum time provided, was considered by Hon'ble the Supreme Court in 2019 SCC OnLine SC 226 titled as M/s SCG Contracts India (P) Limited v. K.S. Chamankar Infrastructure Private Limited and others. It was a case under the Commercial Courts Act. While discussing the earlier judgments of Hon'ble the Supreme Court, including in Kailash vs. Nanhku, (2005) 4 SCC 480 ; Salem Advocate Bar Association vs. Union of India, (2005) 6 SCC 344 and State vs. N.S. Gnaneswaran, (2013) 3 SCC 594 . Hon'ble the Supreme Court proceeded to discuss the effect of the amendment made in CPC for trial of suits under the Commercial Courts Act and it was opined that beyond the maximum period provided in Order VIII Rule 1 i.e. 120 days from the date of service of summons, the written statement cannot be taken on record. In the aforesaid case, the written statement which had been placed on record, was directed to be taken of the record. In the aforesaid case, the written statement which had been placed on record, was directed to be taken of the record. The relevant paras therefrom are extracted below : “...............A perusal of these provisions would show that ordinarily a written statement is to be filed within a period of 30 days. However, a grace period of a further 90 days is granted which the Court may employ for reasons to be recorded in writing and payment of such costs as it deems fit to allow such written statement to come on record. What is of great importance is the fact that beyond 120 days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record. This is further buttressed by the proviso in Order VIII Rule 10 also adding that the Court has no further power to extend the time beyond this period of 120 days. (9) In Bihar Rajya Bhumi Vikas Bank Samiti (supra), a question was raised as to whether Section 34(5) of the Arbitration and Conciliation Act, 1996, inserted by Amending Act 3 of 2016 is mandatory or directory. In para 11 of the said judgment, this Court referred to Kailash vs. Nanhku, (2005) 4 SCC 480 referring to the text of Order 8 Rule 1 as its stood pre the amendment made by the Commercial Courts Act. It also referred to the Salem Advocate Bar Association vs. Union of India, (2005) 6 SCC 344 , which, like the Kailash judgment, held that the mere expression “shall” in Order 8 Rule 1 would not make the provision mandatory. This Court then went on to discuss in para 17 State vs. N.S. Gnaneswaran, (2013) 3 SCC 594 in which Section 154(2) of the Code of Criminal Procedure was held to be directory inasmuch as no consequence was provided if the Section was breached. In para 22 by way of contrast to Section 34, Section 29-A of the Arbitration Act was set out. This court then noted in para 23 as under: “23. It will be seen from this provision that, unlike Sections 34(5) and (6), if an award is made beyond the stipulated or extended period contained in the section, the consequence of the mandate of the arbitrator being terminated is expressly provided. This court then noted in para 23 as under: “23. It will be seen from this provision that, unlike Sections 34(5) and (6), if an award is made beyond the stipulated or extended period contained in the section, the consequence of the mandate of the arbitrator being terminated is expressly provided. This provision is in stark contrast to Sections 34(5) and (6) where, as has been stated hereinabove, if the period for deciding the application under Section 34 has elapsed, no consequence is provided. This is one more indicator that the same Amendment Act, when it provided time periods in different situations, did so intending different consequences.” (10) Several High Court judgments on the amended Order VIII Rule 1 have now held that given the consequence of non-filing of written statement, the amended provisions of the CPC will have to be held to be mandatory. [See Oku Tech Private Limited vs. Sangeet Agarwal & Ors. By a learned Single Judge of the Delhi High Court dated 11.08.2016 in CS (OS) No. 3390/2015 as followed by several other judgments including a judgment of the Delhi High Court in Maja Cosmetics vs. Oasis Commercial Pvt. Ltd. 2018 SCC Online Del 6698. (11) We are of the view that the view taken by the Delhi High Court in these judgments is correct in view of the fact that the consequence of forfeiting a right to file the written statement; non-extension of any further time; and the fact that the Court shall not allow the written statement under Order VIII Rule 1 has now been set at naught. (12) However, learned counsel appearing for the respondents relied strongly upon the judgment in Bhanu Kumar Jain (supra) and Shaikh Salim Haji Abdul Khayumsab (supra) and, in particular, paras 22 and 27 of the first judgment and paras 4 & 19 of the second judgment. (13) We are of the view that since both these judgments dealt with the pre-amendment position, they would not be of any direct reliance insofar as the facts of the present case is concerned.” 11. For the reasons mentioned above, I do not find merit in the present petition. The same is accordingly dismissed.