Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 997 (ALL)

Hafizur Rehman @ Pappu v. Kahkashan Begum

2019-04-19

IRSHAD ALI

body2019
JUDGMENT : IRSHAD ALI, J. 1. Heard Mr. Safiq Mirza, learned Senior Advocate, assisted by Sri Humayun Mirza, learned counsel for the petitioners and Sri Pawan Kumar Mishra, learned counsel for the respondent no.1. 2. Factual matrix of the case is that Suit No.50 of 2014 was filed by respondent no.1 for injunction. Trial Court granted opportunity to file written statement but the same could not be filed before the trial court. On 16.11.2015, opportunity was granted to file written statement on payment of cost, but written statement was not filed. The petitioner moved an application on 19.4.2016 for grant of permission to file written statement. The application was dismissed vide order dated 6.10.2016. Thereafter, the petitioners moved an application No.C-59 for recall of the order dismissing the application for grant of permission to file written statement. The application was dismissed on 21.2.2017. Thereafter, the petitioner filed written statement on 24.4.2017 and moved an application to accept the written statement before the court below. By means of the impugned order dated 18.9.2017, the application of the petitioner dated 24.4.2017 has been rejected on the ground that the order dated 21.2.2017 has not been assailed before any Forum nor an application has been moved for recall of the order. Feeling aggrieved, the petitioners filed revision before the District Judge which has also been dismissed vide order dated 23.1.2019 affirming the order passed by the trial court. 3. Assailing the impugned orders, the submission of learned Senior Advocate is that the cause of action while rejecting the application vide order dated 21.2.2017 and the application for acceptance of written statement were in different proceedings, therefore, both the courts below have committed gross illegality in not considerating the aforesaid aspects of the matter. 4. His next submission is that to grant fair justice to the parties, the opportunity of hearing should not be stopped in a cursory manner. He also pointed out that the law in this regard is very much clear in catena of decisions that the opportunity should be provided to the parties to file their claim before the competent Court by awarding costs. 5. In support of his submission, he placed reliance upon a judgment rendered by the Hon'ble Supreme Court in the case of Sri Surendra Kumar and another v. Sri Rajendra Kumar Agarwal, (1990) 8 LCD 248 . 5. In support of his submission, he placed reliance upon a judgment rendered by the Hon'ble Supreme Court in the case of Sri Surendra Kumar and another v. Sri Rajendra Kumar Agarwal, (1990) 8 LCD 248 . In the case, the defendant moved an application 13 times seeking adjournment to file written statement. The competent authority while considering this aspect of the matter held that the permission would have been accorded by awarding costs to file written statement. 6. Learned counsel for the petitioners further placed reliance upon the judgment rendered by Hon'ble Supreme Court in the case of Saikh Salim Haji Abdul Khayumsab v. Kumar, (2006) AIR SC 396 , wherein after considering, the Hon'ble Supreme Court has recorded that all the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. 7. Learned counsel for the petitioners also placed reliance upon judgment rendered by this Court in the case of Shah Mohammad v. Incharge District Judge, Lucknow and others, (2005) 23 LCD 20 , wherein this Court while dealing with the matter, recorded that a request was made for filing of the written statement by making request that the same is ready. The Court considered the submission and granted permission to file the written statement by setting aside the order rejecting the application to accept the written statement of the defendant. 8. On the other hand, learned counsel for the respondent no.1 submitted that opportunities were provided to the defendant to file written statement but the same was not availed by him on 16.11.2015 and 19.4.2016. The petitioner-defendants were provided opportunity to file written statement by awarding cost that too was not availed. Thereafter, several dates were fixed and lastly, vide order dated 6.10.2016, opportunity to file written statement was closed. The petitioner-defendants were provided opportunity to file written statement by awarding cost that too was not availed. Thereafter, several dates were fixed and lastly, vide order dated 6.10.2016, opportunity to file written statement was closed. The petitioner-defendants moved an application for recall of the order, which has been rejected on 21.2.2017 closing the proceeding to provide opportunity to the petitioner-defendants and to proceed to hear the matter ex parte. Therefore, his submission is that once the court passed an order to hear the matter ex parte and the order was not assailed at any Forum, therefore both the courts below have committed no error in law in rejecting the application to accept the written statement. 9. I have considered the rival submissions advanced by the learned counsel for the parties and perused the law reports cited by the learned counsel for both the parties. 10. In regard to submission of learned counsel for respondent no.1 that while dealing with the order dated 21.2.2017, both the courts below gave finding that the same attained finality due to non-challenge before any Forum, is wholly misconceived. 11. In the case of Sri Surendra Kumar (supra) relied upon by learned counsel for the petitioners, the Hon'ble Supreme Court has held in paragraph 7 and 11 as under: "7. Learned counsel for the applicant Sri Rajesh Tandon has very strenuously submitted that the trial court has acted in an arbitrary manner in decreeing the suit even without the applicants (defendants) written statement having been brought on the record. The trial court granted adjournments as many as 13 times to the applicants but in spite of the above adjournments, the defendants (applicants) did not file the written statement and seemingly was more interested in procrastinating the proceedings in order to save the tenancy as far as possible. But howsoever reprehensible or malicious the conduct of the defendants may be, still in the fitness of the things an opportunity to the applicants (defendants) ought to have been granted to file the written statement. It is also true that defendants were callously negligent or deliberately avoiding to file the written statement. But howsoever reprehensible or malicious the conduct of the defendants may be, still in the fitness of the things an opportunity to the applicants (defendants) ought to have been granted to file the written statement. It is also true that defendants were callously negligent or deliberately avoiding to file the written statement. Yet the perusal of the order sheet clearly shows that there was some hurry or haste for the disposal of the case may be at the behest of the opposite party (pltff.) Often adjournment is sought and the court on finding the grounds to be sufficient, allows it and once such adjournment has been allowed, it cannot be said that the several adjournments have been granted. In each case depending upon the mertis and sufficiency of the reasons for allowing the adjournment, the court has to exercise its discretion and having exercised its discretion it is not imperative for the court to go into the past conduct that in view of several adjournments having granted, no adjournment can be allowed. Circumstances may be there which may prompt the court to allow the adjournments. Likewise the circumstances may be there which may ultimately find rejection in the application for adjournment. It has now become a common practice with the tenants to seek adjournments on frivolous grounds solely for the purpose to delay the proceedings where the suit is for eviction hut that alone would not be a guiding factor to disallow adjournment. Costs could have been imposed for granting adjournment. Exemplary costs can be imposed where the conduct of the defendant warrant such imposition. However it appears that the trial court was more swayed by the conduct of the defendant, still it would have been appropriate to allow time to the defendant to file written statement. 11. However as has been observed above an opportunity to file the written statement was required and such denial has to my mind ended in the miscarriage of justice." 12. In the case of Saikh Salim Haji Abdul Khayumsab (supra) relied upon by learned counsel for the petitioners, the Hon'ble Supreme Court has held in paragraph 10, 16, 17 and 21 as under: "10. All the rules of procedure are the handmaid of justice. In the case of Saikh Salim Haji Abdul Khayumsab (supra) relied upon by learned counsel for the petitioners, the Hon'ble Supreme Court has held in paragraph 10, 16, 17 and 21 as under: "10. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. 16. Challenge to the Constitutional validity of the Amendment Act and 1999 Amendment Act was rejected by this Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India, (2002) 9 JT 175 SC ). However to work out modalities in respect of certain provisions a Committee was constituted. After receipt of Committee's report the matter was considered by a three-Judge Bench in Salem Advocate Bar Association, Tamil Nadu v. Union of India, (2005) 6 JT 486 SC ). As regards Order VIII Rule 1 Committee's report is as follows: "The question is whether the Court has any power or jurisdiction to extend the period beyond 90 days. The maximum period of 90 days to file written statement has been provided but the consequences on failure to file written statement within the said period have not been provided for in Order VIII Rule 1. The point for consideration is whether the provision providing for maximum period of ninety days is mandatory and, therefore, the Court is altogether powerless to extend the time even in an exceptionally hard case. It has been common practice for the parties to take long adjournments for filing written statements. The legislature with a view to curb this practice and to avoid unnecessary delay and adjournments, has provided for the maximum period within which the written statement is required to be filed. The mandatory or directory nature of Order VIII Rule 1 shall have to be determined by having regard to the object sought to be achieved by the amendment. The legislature with a view to curb this practice and to avoid unnecessary delay and adjournments, has provided for the maximum period within which the written statement is required to be filed. The mandatory or directory nature of Order VIII Rule 1 shall have to be determined by having regard to the object sought to be achieved by the amendment. It is, thus, necessary to find out the intention of the legislature. The consequences which may follow and whether the same were intended by the legislature have also to be kept in view. In Raza Buland Sugar Co. Ltd., Rampur v. The Municipal Board, Rampur, (1965) AIR SC 895, a Constitution Bench of this Court held that the question whether a particular provision is mandatory or directory cannot be resolved by laying down any general rule and it would depend upon the facts of each case and for that purpose the object of the statute in making out the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory. 17. In Sangram Singh v. Election Tribunal Kotah & Anr., (1955) AIR SC 425 , considering the provisions of the Code dealing with the trial of the suits, it was opined that: "Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a Penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Too technical construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle. " 21.In the facts and circumstances of the case, the maxim of equity, namely, actus curiae neminem gravabit an act of court shall prejudice no man, shall be applicable. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia the law does not compel a man to do what he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. The applicability of the aforesaid maxims has been approved by this Court in Raj Kumar Dey v. Tarapada Dey, (1987) 4 SCC 398 , Gursharan Singh v. New Delhi Municipal Committee, (1996) 2 SCC 459 and Mohammod Gazi v. State of M.P. and others, (2000) 4 SCC 342 ." 13. In the case of Shah Mohammad (supra) relied upon by learned counsel for the petitioners, this Court has held in paragraphs 2, 3, 4, 5 and 6 as under: "2. A short question involved in this case is that according to amendment done in the Code of Civil Procedure, the written statement should have been filed by the defendant petitioner within a statutory stipulated period. A short question involved in this case is that according to amendment done in the Code of Civil Procedure, the written statement should have been filed by the defendant petitioner within a statutory stipulated period. Since the petitioner had not filed the written statement within period provided under Order VIII Rule 1 of the Code of Civil Procedure i.e. the period of 90 days petitioner's application has been rejected by the trial Court as well as revisional Court on the ground that there is no provision for extension of time in the amended Code of Civil Procedure and accordingly petitioner has lost his right to file the written statement. 3. Learned counsel for the petitioner had relied upon the judgment of Delhi High Court , Dr. Sukhdev Singh v. Amrit Pal Singh and others, (2003) AIR Delhi 280 the Delhi High Court while interpreting the relevant provision of the amended Code of Civil Procedure arrived to the conclusion that the delay in filing the written statement may be condoned by the Court in case grounds are sufficient. Para 5 and 6 of the said judgment is recorded as under:- "5. Having heard counsel for the parties and taking into consideration the respective pleas urged before me. I am of the view that this is a case where the delay in filing of the written statement deserves to be condoned. Firstly it is a suit for partition concerning a family members where every endeavour should be made for amicable settlement. Even otherwise, the mandate under Section 89 effort ought to be made to settle the matter. Secondly, the defendant had already filed the written statement in the suit in District Court. Hence it could not be the situation that the defendant was delaying the case, but on account of the attempts at settlement written statement was not filed. Next the learned counsel expressed reservation that the defendant would attempt to improve its case. In case any pleas are sought to be taken which are inconsistent with the earlier written statement or any admission is sought to be withdrawn, it is always to the plaintiff to assail the same. Mr. Sanghi states that certain subsequent events are only sought to be brought on record. I need not go into this question at this stage. 6. Mr. Sanghi states that certain subsequent events are only sought to be brought on record. I need not go into this question at this stage. 6. Reference may be made to the observations of the Supreme Court in Topline Shoes Ltd. v. Corporation Bank, (2002) AIR SC 2487 , wherein while dealing with the time limit prescribed for filing reply under Section 13 (2)(a) of Consumer Protection Act 1986, the Court held as under at page 2489-2490: "The intention to provide a time frame to file reply is really meant to expedite the hearing of such matters and to avoid unnecessary adjournments to linger on the proceedings on the pretext of filing reply. The provision however, as framed does not indicate that it is mandatory in nature in case the extended time exceeds 15 days no penal consequences are prescribed therefor. The period of extension of time "not exceeding 15 days" does not prescribe any kind of period of limitation. The provision appears to be directory in nature, which the consumer forums are ordinarily supposed to apply, in a proceedings before them. It cannot be said that in no event, whatsoever the reply of the respondent could be taken on record beyond the period of 45 days. The provision is more by way of procedure to achieve the object of speedy disposal of the such disputes. It is an expression of 'desirability' in strong terms. But it fails short of creating of any kind of substantive right in favour of the complainant by reason of which the respondent may be debarred from placing his version in defence in any circumstances whatsoever. it is for the forum or the commission to consider all facts and circumstances along with the provisions of the Act providing time frame to file reply as a guideline and then to exercise its discretion as best it may serve the ends of justice and achieve the object of speedy disposal of such cases keeping in mind principles of natural justice as well. The forum may refuse to extend time beyond 15 days, in view of Section 13 (1)(a) of the Act, but exceeding the period of 15 days of extension, would not cause any fatal illegality in the other." 4. The forum may refuse to extend time beyond 15 days, in view of Section 13 (1)(a) of the Act, but exceeding the period of 15 days of extension, would not cause any fatal illegality in the other." 4. Learned counsel for the petitioner had further relied upon the judgment reported in Topline Shoes Ltd. v. Corporation Bank., (2002) AIR SC 2487 The Apex Court in the said judgment ruled that the intention to provide a time frame to file a reply is really meant to expedite the hearing of such matters and to avoid unnecessary adjournments to linger on the proceedings on the pretext of filing reply. The Apex Court further arrived to the conclusion, the provision does not indicate that it is a mandatory in nature. However, the judgment of Apex Court has been considered by Delhi High Court in Dr. Sukh Deo Singh's case (supra). 5. Learned counsel for the petitioner submits that the written statement is ready and he wants to file the same immediately. After considering the facts of the present case as well as impugned order, I am of the view that petitioner may be permitted to file written statement. 6. In view of above, the impugned judgment and orders dated 12.2.2004 and 20.1.2004 are quashed with consequential benefits. The petitioner may file the written statement which is ready as per statement of petitioners counsel, in the Court below on 27.3.2004. The case has been reported to be fixed for 27.3.2004." 14. On perusal of the judgment rendered in the case of Sri Surendra Kumar (Supra), the Hon'ble Supreme Court held that the defendants were callously negligent or deliberately avoiding to file the written statement. Yet perusal of the order sheet clearly shows that there was some hurry or haste for the disposal of the case may be at the behest of the opposite party (plaintiff). Often adjournment is sought and the court on finding the grounds to be sufficient, allows it and once such adjournment has been allowed, it cannot be said that the several adjournments have been granted. In each case depending upon the merits and sufficiency of the discretion and having exercised its discretion it is not imperative for the court to Government into the past conduct that in view of several adjournments having granted, no adjournment can be allowed. In each case depending upon the merits and sufficiency of the discretion and having exercised its discretion it is not imperative for the court to Government into the past conduct that in view of several adjournments having granted, no adjournment can be allowed. Circumstances may be there which may prompt the court to allow the adjournments. Likewise the circumstances may be there which may ultimately find rejection in the application for adjournment. It has now become a common practice with the tenants to seek adjournments on frivolous grounds solely for the purpose to delay the proceedings where the suit is for eviction but that alone would not be a guideline factor to disallow adjournment. Costs could have been imposed for granting adjournment. Exemplary costs can be imposed where the conduct of the defendant warrant such imposition. 15. However, in the present case, both the courts below would have taken lenient view in dispensation of justice and by awarding cost, the time would have been allowed to file written statement. Rejection of application by the impugned orders and not accepting the written statement filed on record appear to be not justified. However, both the courts below have committed gross illegality in not providing opportunity to file written statement in the courts below. 16. In the opinion of this court, such denial has to my mind ended in the miscarriage of justice. Similar view was taken in the case of Saikh Salim Haji Abdul Khayumsab (supra) 17. This Court is in full agreement with the judgments relied upon by learned counsel for the petitioner and in view of the above, this Court is of the opinion that in passing the impugned orders, both the courts below have committed gross illegality. 18. Considering the above, orders dated 23.1.2019 and 18.9.2017 are hereby set aside. The writ petition is allowed. 19. However, direction is issued to the trial court to accept the written statement and proceed to decide the Suit No.50 of 2014 expeditiously and preferably within one year from the date of production of a certified copy of this order.