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Jharkhand High Court · body

2019 DIGILAW 727 (JHR)

Hari Kumhar son of Rakhal Kumhar v. Basant Kumhar

2019-03-15

ANUBHA RAWAT CHOUDHARY

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JUDGMENT : 1. Heard Mr. Amar Kumar Sinha, Advocate appearing on behalf of the petitioner along with Mr. Kundan Kumar Ambastha, Advocate. 2. Heard the counsels for the respondents. 3. This writ petition has been filed for the following relief: “For quashing the order dated 9.10.2015 passed by the learned Sub Judge I, Ranchi in Title Suit no.337 of 2014 contained in Annexure – 2 to the writ petition by which the learned court below has illegally passed an order debarring the defendants from filing written statement and for quashing the order dated 11.5.2016 passed by the learned Sub Judge I, Ranchi in Title Suit No.337 of 2014 contained in Annexure – 5 to this writ petition by which the learned court below has rejected the petition filed by the defendants to recall the said order dated 9.10.2015 and to accept the written statement filed by the defendants misconstruing the provision contained in Order 8 Rule 1 C.P.C. and for such other relief or reliefs to which the petitioner is legally entitled to.” 4. Counsel for the petitioner submits that the summons in the instant case were received on 19.03.2015, the defendants had appeared on 24.06.2015. Vide order dated 09.10.2015, the petitioner was debarred from filing the written statement .The written statement was subsequently filed and a petition dated 08.04.2016 under order VIII Rule 1 of Code of Civil Procedure, 1908 was also filed for recall of order dated 09.10.2015 explaining the reasons for delay in filing the written statement and with a prayer for taking the written statement on record. He submits that there has been a delay of around 10 months in filing the written statement. The petition dated 08.04.2016 was rejected by the impugned order dated 11.05.2016. 5. He submits that learned lower court while considering the petition dated 08.04.2016 has held that the court has no jurisdiction to enlarge the time for taking the written statement on record and such enlargement could be done only by the High Court under writ jurisdiction. Further, the learned court has held that there was negligence, disobedience and delaying tactics and complete non seriousness on the part of the defendants. 6. Further, the learned court has held that there was negligence, disobedience and delaying tactics and complete non seriousness on the part of the defendants. 6. Counsel for the petitioner by referring to the said petition dated 08.04.2016, submits that the reason for not filing the written statement within time was well explained which included the fact that the petitioner is rustic villager and that the written statement could not be filed on account of the illness of the petitioner. It was also stated in the petition that in such circumstances, the petitioner, who was taking care of the case, could not inform his advocate for taking proper steps in the suit due to which no parvi was made on behalf of the defendants and no cross examination of the witnesses of plaintiff was also carried out by the defendants before the learned court below. 7. He further submits that although a rejoinder to this petition dated 08.04.2016 was filed, but the fact that the petitioner was ill for a considerable time and that the defendants are the rustic villagers, have not been denied in the rejoinder. Accordingly, he submits that the observation of the learned court below that there was sheer negligence, disobedience and delaying tactics on the part of the defendants is not borne out of record. He further submits that the delay in filing the written statement is well explained and accordingly the written statement may be directed to be taken on record. 8. He further submits that the suit relates to declaration of right, title and interest of the property and also for setting aside the sale deed alleged to be illegal and void and if the written statement of the defendants is not taken on record, the defendants would suffer irreparable loss and injury. 9. Counsel appearing on behalf of the petitioner has also relied upon a judgment passed by this Court in the case reported in (2005) 4 SCC 480 (Kailash Vs. Nanhku and Ors.) as well as a judgment passed by this Court reported in 2015 (4) JLJR 361 which has followed the aforesaid judgment of the Hon’ble Supreme Court. 10. 9. Counsel appearing on behalf of the petitioner has also relied upon a judgment passed by this Court in the case reported in (2005) 4 SCC 480 (Kailash Vs. Nanhku and Ors.) as well as a judgment passed by this Court reported in 2015 (4) JLJR 361 which has followed the aforesaid judgment of the Hon’ble Supreme Court. 10. Counsel appearing on behalf of the respondents on the other hand submits that the petitioner was totally negligent in conducting the case and as per the mandate of the Code of Civil Procedure, 1908, which has been amended in the year 2002, the written statement of the petitioner cannot be taken on record. He submits that the period prescribed is 90 days and at best it could be extended to 120 days in total by the learned court below by referring to Section 148 of Code of Civil Procedure, 1908. The defendants having not filed the written statement within a period of 120 days from the date of receipt of the summons, the defendants have been rightly debarred from filing the written statement. 11. Counsel has also relied upon a judgment passed by Hon’ble Supreme Court reported in 2019 SCC OnLine SC 226 (SCG Contracts India Pvt. Ltd. Vs. K.S. Chamankar Infrastructure Pvt. Ltd. and Ors.) to submit that the Hon’ble Supreme Court has held that amendments made in Order VIII Rule 10 of Code of Civil Procedure indicates that the provisions of filing written statement within the prescribed time frame is mandatory and no extension of time could be granted. 12. In response, the counsel for the petitioner submits that the judgment relied upon by the respondents has not over ruled the ratio of the judgment laid down in the case of Kailash Vs. Nanhku reported in (2005) 4 SCC 480 , but the Hon’ble Supreme Court has taken into consideration the amendment made in the code of civil procedure , 1908 so far it is applicable to the courts under Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts , Act, 2015 ( hereinafter referred to as Commercial Courts Act of 2015) which was published on 31.12.2015. He submits that the time lines which have been prescribed under the said Commercial Courts Act of 2015 are very stringent and the instant case does not arise out of a proceeding before a court under Commercial Courts Act, 2015 and accordingly, the law which has been laid down in the case of kailash Vs. Nanhku and consistently followed by this Court in various judgments, will still apply so far as the cases which do not arise from proceedings before the courts constituted under Commercial Court Act, 2015. 13. After hearing the counsel for the parties and after considering the materials on record, this Court finds that the Hon’ble Supreme Court in the case of Kailash Vs. Nanku has clearly held that the provision of, Order VIII Rule 1 of the code of civil procedure as amended in 2002, has to be held directory and not mandatory in para – 41 and 46 (4). The said paragraphs of the aforesaid judgment is quoted as follows: “41. 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. 46. (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 defendant seeking extension of time beyond the limits laid down by the provision may not ordinarily be shown indulgence. 46. (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. 14. This Court finds that the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter referred to as the Commercial Courts Act, 2015) has come into force with effect from 23.10.2015 with an object of expeditious disposal of the matters arising out of commercial litigations of specified value and there has been certain modifications and amendments in the Code of Civil Procedure, 1908 so far as they apply to the courts constituted under aforesaid Commercial Courts Act, 2015. As per the said provisions, Section 16 of the aforesaid Commercial Courts Act, 2015 reads as under: 16. Amendments to the Code of Civil Procedure, 1908 in its application to commercial disputes.—(1) The provisions of the Code of Civil Procedure, 1908 (5 of 1908) shall, in their application to any suit in respect of a commercial dispute of a Specified Value, stand amended in the manner as specified in the Schedule. (2) The Commercial Division and Commercial Court shall follow the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, in the trial of a suit in respect of a commercial dispute of a Specified Value. (2) The Commercial Division and Commercial Court shall follow the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, in the trial of a suit in respect of a commercial dispute of a Specified Value. (3) Where any provision of any Rule of the jurisdictional High Court or any amendment to the Code of Civil Procedure, 1908 (5 of 1908), by the State Government is in conflict with the provisions of the Code of Civil Procedure, 1908, as amended by this Act, the provisions of the Code of Civil Procedure as amended by this Act shall prevail. 15. Some of the amendments in the Code of Civil Procedure in its applicability to commercial disputes under the said Act of 2015 is apparent from the following comparative table: Provisions of CPC Provisions of CPC as applicable under commercial Courts Act of 2015 Order V, Rule 1. Summons. — (1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant: Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiffs claim: 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 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. In the Order V, in Rule 1 Summons. In the Order V, in Rule 1 Summons. — (1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant: Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiffs claim: “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.” ORDER VIII Rule 1 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 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. Order VIII Rule 1 1. Order VIII Rule 1 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 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.” Order VIII, Rule 10 10. Procedure when party fails to present written statement called for by Court.—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, 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. Order VIII, Rule 10 10. Procedure when party fails to present written statement called for by Court.—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, 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 of the written statement. 16. Provided that no Court shall make an order to extend the time provided under Rule 1 of this Order for filing of the written statement. 16. Upon perusal of the aforesaid insertions/amendments made in the Code of Civil Procedure for the purposes of courts constituted under Commercial Courts Act, 2015, this Court finds that the time line which has been prescribed under the Code of Civil Procedure, 1908, as amended in the year 2002, for the filing of written statement, has become more stringent so far as Commercial Courts are concerned. Hon’ble Supreme Court in the judgment which has been reported in 2019 SCC onLine SC 226 and relied upon by the respondents, has considered the aforesaid provisions of Commercial Courts Act, 2015 and held as under in para 11 to 14 which is quoted below for ready reference: 11. A perusal of these provisions would show that ordinarily a written statement is to be filed within a period of 30 days. However, 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. 12. 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 V. Nanhku, (2005) 4 SCC 480 referring to the text of Order 8 Rule 1 as it stood pre the amendment made by the Commercial Courts Act. It also referred to the Salem Advocate Bar Association V. 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. It also referred to the Salem Advocate Bar Association V. 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 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 period in different situations, did so intending different consequences.” 13. 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 v. Sangeet Agarwal 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 v. Oasis Commercial Pvt. Ltd. 2018 SCC Online Del 6698. 14. 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 to be taken on record all points to the fact that the earlier law on Order VIII Rule 1 on the filing of written statement under Order VIII Rule 1 has now been set at naught.” 17. The Hon’ble Supreme Court has not over ruled the ratio of judgment passed in the case of Kailash Vs. Nankhu but has curtailed its applicability to courts under said Commercial Courts Act of 2015. 18. This Court is of the considered view that the judgment passed in the case of Kailash Vs. Nankhu will still govern the field for the cases which do not arise from a court constituted under the aforesaid Commercial Courts Act, 2015. 19. The ratio of judgement passed in the case of Kailash Vs. Nankhu has already been quoted above which has been followed by this Court in 2015 (4) JLJR 361 . 20. In Judgment reported in 2005 (4) JCR 118 (SC) Rani Kusum Vs. Kanchan Devi) it has been held that the statutory provisions under Order VIII Rule 1 of C.P.C. does not create a bar on the power of the court to grant time even beyond extended period of 90 days. 21. In such circumstances, this Court finds that the judgment passed by Hon’ble Supreme Court reported in 2019 SCC OnLine SC 226 does not apply to the facts and circumstances of this case as admittedly the instant proceeding does not arise out of a proceeding from the commercial court constituted under Commercial Courts Act of 2015. 22. This Court further finds that the petitioner had filed a petition for recall of the order dated 09.10.2015 and for taking the written statement on record vide petition dated 08.04.2016 citing reasons of illness and also the fact that the defendants are rustic villagers, and on account of reasons beyond their control, they could not give instructions to their conducting counsel, who did not even cross examine the witness of the plaintiff. These aspects of the matter have not been disputed by the plaintiff in their reply to the petition dated 08.04.2016, filed by the petitioner. In such circumstances, this Court finds that there was sufficient cause for the petitioner for not filing the written statement within the stipulated time frame as provided under Code of Civil Procedure. The impugned order does not disclose proper consideration of the plea taken by defendants for not filing written statement within time. 23. In such circumstances, this Court finds that there was sufficient cause for the petitioner for not filing the written statement within the stipulated time frame as provided under Code of Civil Procedure. The impugned order does not disclose proper consideration of the plea taken by defendants for not filing written statement within time. 23. Considering the above facts, this Court is of the view that the petitioner should be granted an opportunity to contest the suit on merits and the written statement already filed before the learned court below is directed to be taken on record. 24. Accordingly, the impugned order dated 11.05.2016 passed by the learned Sub Judge I, Ranchi in Title Suit No.337 of 2014 is hereby set-aside and the trial court is directed to take the written statement filed by the defendants on record and proceed in the matter in accordance with law. 25. The writ petition stands allowed.