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2020 DIGILAW 4 (ORI)

Sanghamitra Sahu v. Santilata Rath

2020-01-02

BISWANATH RATH

body2020
JUDGMENT : Biswanath Rath, J. 1. This Civil Miscellaneous Application involves a challenge to the impugned order dated 29.08.2019 passed by the Civil Judge (Senior Division), Cuttack in C.S. No. 937 of 2017 thereby making a request to direct the Civil Judge (Senior Division), Cuttack to accept the written statement as well as the counter claim of the petitioners on recalling of the ex-parte order filed by the defendants. 2. Short background involving the case is that the plaintiff-opposite party no. 1 herein instituted a suit bearing C.S. No. 937 of 2017 against the petitioner and proforma opposite party for declaration of right, title and interest over the suit land further to declare the Registered Sale Deed dated 7.10.2016 as illegal, invalid and void and also for permanent injunction with ancillary relief. While the suit was posted for appearance of defendants after being adjourned for several times, finally the petitioners were set ex-parte vide order dated 5.01.2019 for non-filing of written statement within the stipulated period of time. It is after coming to know about the ex-parte order, petitioners -the defendants filed an application for recalling the order dated 5.1.2019 and also raying for permitting the defendants to contest the suit on acceptance of written statement. Be it stated here that the petitioners though filed an application along with written statement and also a counterclaim, plaintiff filed objection challenging such application. The Civil Judge (Senior Division), Cuttack heard both the petitions i.e. petition to recall the ex-parte order and also to accept the written statement along with counter claim analogously and vide its order dated 29.08.2019 while was pleased to allow the petition for recalling the order dated 5.01.2019 by setting aside the order dated 5.01.2019 but however, rejected the petition for acceptance of written statement observing that the petitioners can participate in the hearing of the suit inasmuch as cross-examination of the witnesses of the plaintiff. 3. Assailing the order dated 29.08.2019, learned counsel for the petitioners contended that the Civil Judge has failed to appreciate the fact that filing of written statement within the time stipulation is not an iron jacket formula. It is, therefore, contended that once the trial court has set aside the ex-parte, order, simultaneously it should have allowed the application for acceptance of written statement as well as the counter claim. It is, therefore, contended that once the trial court has set aside the ex-parte, order, simultaneously it should have allowed the application for acceptance of written statement as well as the counter claim. Petitioners also contended that for not being allowed the application for acceptance of written statement and the counter claim, there will be no fair play and the petitioners will be prevented from getting effective adjudication of the dispute involved therein. The petitioners also alleged that there has been no proper application of mind, as by the impugned order, it appears the trial while allowing one application has not cleared the position of the other application. It is in the above background, Sri Debaraj Mohanty, learned counsel appearing for the petitioners prayed this Court for interfering in the impugned order and setting aside the same. Petitioners while pressing the above relief, relied on the decisions of the Hon'ble Apex Court in the cases of Kailash v. Nanhku and others, AIR 2005 Supreme Court 2441 : 2005 (I) OLR (SC) 718, Rani Kusum (Smt.) v. Kanchan Devi(Smt.) and others, (2005) 6 Supreme Court Cases 705 and also a decision of this Court in the case of Srimati Gand and another v. Udaya Chandra Patel and others, 1984 (I) OLR 924. 4. In his contest, Sri A. Routray, learned counsel appearing for the contesting opposite party taking this Court to the plaintiffs objection in the court below and the grounds raised therein contended that for the amended provision of the Code of Civil Procedure and for the recent decisions of the Hon'ble Apex Court in the case of Ashok Kumar Kalra v. Surendra Agnihotri and Ors, SLP(C) No. 23599 of 2018 decided on 19.11.2019 and another decision of Hon'ble Apex Court in the case of SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. and Ors. AIR 2019 Supreme Court 2691, the impugned order becomes justified and there need no interference in the same. 5. Considering the rival contentions of the parties, this Court finds no doubt that the petitions involved one to recall the ex-parte order and the second one for acceptance of written statement along with counter claim filed late. AIR 2019 Supreme Court 2691, the impugned order becomes justified and there need no interference in the same. 5. Considering the rival contentions of the parties, this Court finds no doubt that the petitions involved one to recall the ex-parte order and the second one for acceptance of written statement along with counter claim filed late. It is at this stage, looking to the provisions under Order 8, Rule 1 of the Code of Civil Procedure under the amended provision then the Order 8, Rule 6 of the Code of Civil Procedure read with Order 5, this Court finds the provisions therein are mandatory nature rather than directory This Court also finds that there is no denial that both the applications are filed not only after the framing of issue but also after commencement of trial. Thus, moving the application for acceptance of written statement with counter claim opposed to provision of law. 6. In deciding similar situation in the case of SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. and Ors., AIR 2019 Supreme Court 2691, the Hon'ble Apex Court in categoric terms in the same situation held for the delayed filing of written statement, the written statement of the defendant no. 1 must not be taken on the record. For better appreciation of the case, the decision of the Hon'ble Apex Court in the case of SCG Contract India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. and Ors., AIR 2019 Supreme Court 2691, in paragraph-8 is reflected as hereunder: "(8) The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 came into force on 23.10.2015 bringing in their wake certain amendments to the Code of Civil Procedure. In Order V, Rule 1, 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 days, 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 and 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." Equally, in Order VIII Rule 1, a new proviso was substituted as follows: "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 and twenty days from the date of service of summons and on expiry of one hundred and 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." This was re-emphasized by re-inserting yet another proviso in Order VIII Rule 10 CPC, which reads as under:- "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 pronouncement of such judgment a decree shall be drawn up. Provided further that no Court shall make an order to extend the time provided under Rule 1 of this Order for filing of the written statement." 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 reason 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." Similarly, in the case of Ashok Kumar Kalra v. Surendra Agnihotri and Ors., SLP(C) No. 23599 of 2018, another recent decision of the Hon'ble Apex Court dated 19.11.2019, three Judges Bench of the Hon'ble Apex Court answering a reference of similar nature by a Division Bench of Hon'ble Apex Court taking into account several other decisions available by then as discussed in paragraphs-14, 16 and 17 held the whole purpose of procedural law is to ensure that the legal process is made effective in the process of delivering substantial justice, it is further held that provision of Rule 6A in Order VIII of the Code of Civil Procedure is interpreted in such a way to allow the period of filing of counter claim. The provision itself becomes redundant and the purpose for which the amendment is made will be defeated and ultimately it leads to flagrant miscarriage of justice. While also observing that there cannot be a rigid and hyper-technical approach that the provision stipulates that the counter claim has to be filed along with the written statement and beyond that, the Court has no power. While also observing that there cannot be a rigid and hyper-technical approach that the provision stipulates that the counter claim has to be filed along with the written statement and beyond that, the Court has no power. Therein the Hon'ble Apex Court has also come to observe that the trial court has to exercise the discretion judiciously and come to a definite conclusion that by allowing the counter claim, no prejudice is caused to the opposite party, process is not unduly delayed and the same is in the best interest of justice. But while keeping in view that the defendant cannot be permitted to file the counter claim after the issues are framed and after the suit has proceeded substantially, in paragraph-20, the Hon'ble Apex Court (delivered by Hon'ble Mr. N.V. Raman, J) ultimately observed as follows: "We sum up our findings, that Order VIII Rule 6A of the Code of Civil Procedure does not put an embargo on filing the counter-claim after filing the written statement, rather the restriction is only with respect to the accrual of the cause of action. Having said so, this doe's not give absolute right to the Defendant to file the counterclaim with substantive delay, even if the limitation period prescribed has not elapsed. The court has to take into consideration the outer limit for filing the counter-claim, which is pegged till the issues are framed. The court in such cases have the discretion to entertain filing of the counter-claim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive; i. Period of delay ii. Prescribed limitation period for the cause of action pleaded iii. Reason for the delay iv. Defendant's assertion of his right v. Similarity of cause of action between the main suit and the counter-claim vi. Cost of fresh litigation vii. Injustice and abuse of process viii. Prejudice to the opposite party ix. And facts and circumstances of each case x. In any case, not after framing of the issues." Similarly, Hon'ble Mr. M.M. Shantanagoudar, J. giving his own view. Hon'ble Mr. Shantanagoudar, J. while agreeing with the conclusion of Hon'ble Mr. Cost of fresh litigation vii. Injustice and abuse of process viii. Prejudice to the opposite party ix. And facts and circumstances of each case x. In any case, not after framing of the issues." Similarly, Hon'ble Mr. M.M. Shantanagoudar, J. giving his own view. Hon'ble Mr. Shantanagoudar, J. while agreeing with the conclusion of Hon'ble Mr. N.V. Ramama, J. that a court may exercise its discretion and permit to file counter claim after the written statement till the stage of framing of the issues of the trial observed exceptional circumstances, the subsequent filing of a counter-claim maybe permitted till the state of commencement of recording of the evidence on behalf of the plaintiff. Ultimately, in paragraph-46, it has been observed as follows: "46. Having considered the previous judgments of this Court on counter-claims, the language employed in the Rules related thereto, as well as the intention of the Legislature, I conclude that it is not mandatory for a counter-claim to be filed along with the written statement. The Court, in its discretion, may allow a counter-claim to be filed after the filing of the written statement, in view of the considerations mentioned in the preceding paragraph. However, propriety requires that such discretion should ordinarily be exercised to allow the filing of a counter claim till the framing of issues for trial. To this extent, I concur with the conclusion reached by my learned Brothers. However, for the reasons stated above, I am of the view that in exceptional circumstances, a counter-claim may be permitted to be filed after a written statement till the stage of commencement of recording of the evidence on behalf of the Plaintiff." 7. It is at this stage, considering the case at hand involving two petitions; one to set aside the order dated 5.01.2019 and the other application to accept the written statement along with the counter claim, this Court finds both the petitions were filed on one day i.e. on 7.08.2019. In paragraphs-3, 4 and 5, the defendants stated as followed: "3. That, the suit is not at all maintainable due to suppression of real material facts in issue as well as given inaccurate statement in the suit and the suit should be dismissed on that score only. It is a fact that, one Ashok Kumar Samal, who introduced the defendants with the sons of the plaintiff viz. That, the suit is not at all maintainable due to suppression of real material facts in issue as well as given inaccurate statement in the suit and the suit should be dismissed on that score only. It is a fact that, one Ashok Kumar Samal, who introduced the defendants with the sons of the plaintiff viz. Keshab Chandra Rath, who subsequently introduced one person namely Himanshu Sekhar Rath as well as with plaintiff and after repeated visit to the house of the plaintiff and discussion with the sons of the plaintiff, as the plaintiff was more than 71 years old at that time, the defendants paid the consideration amount in cash as well as through cheque for the purchased land. 4. That, the averments stated in Para-1 of the plaint is disputed, not admitted and the same are stoutly denied by these defendants as the sale deed dated 07.10.2016 alleged to have executed in favour of Defendants by the plaintiff by impersonation over the properties described in schedule 'B' of the plaint. It is a fact that the suit property is a part and appertains to Plot No. 1474/SHAS (old No. 201/(C) an area 2700 Sq. Ft. in the district of Cuttack, which described in schedule 'A' of the plaint. 5. That, the averments stated in Para-2 to 7 are not in the direct knowledge of these defendants and the plaintiff has to strictly prove the same before this Honourable Court as the said averment rests/based upon the documentary evidence. It is a fact that, at the time of payment of consideration money of Schedule 'A' property before the CDA and at the time of death of the husband of the plaintiff, the defendants were not present as the defendants came across with the plaintiff and her sons along with mediator Ashok Kumar Samal in the year 2016, when the plaintiff's son openly declare to sale the suit schedule property in question." 8. Now coming to scan the impugned order, this Court finds considering the grounds stated in paragraphs-3 and 4, the trial court was pleased to set aside the ex-parte order dated 5.01.2019. From the objection filed by the plaintiff herein through Annexure-3, it appears on 11.12.2017, defendant nos. 1 and 2 received notice. On 19.12.2017 postal summons were also served. On 8.01.2018 defendant no. 3 only appeared and filed written statement. From the objection filed by the plaintiff herein through Annexure-3, it appears on 11.12.2017, defendant nos. 1 and 2 received notice. On 19.12.2017 postal summons were also served. On 8.01.2018 defendant no. 3 only appeared and filed written statement. Thereafter the suit was posted to 15.01.2018 for consideration of service against defendant nos. 1 and 2. On 15.01.2018 service against defendant nos. 1 and 2 held to be sufficient. In the meantime, not only the-issues are also settled but there is also examination of plaintiff's witnesses. It is applying the principle enunciated by the Hon'ble Apex Court in the case of Ashok Kumar Kalra v. Surendra Agnihotri and Ors. (supra) and also the decision in SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. and Ors, AIR 2019 Supreme Court 2691, this Court finds the defendants involved herein i.e. the petitioners failed in satisfying any of the test as from the conduct of defendants not only that they have-not filed the written statement as well as counter claim the time but there appears there was no reason to attain another lawyer by giving a fresh vakalatnama on 3rd August, 2019 to come to know the fate of the case. Further, for settlement of the issue already there and also for the commencement of evidence, this Court finds the judgment of the trial court gets full support of the latest judgment of the Hon'ble Apex Court through the case of Ashok Kumar Kalra v. Surendra Agnihotri and Ors. (supra) as well as the decision vide SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. and Ors. AIR 2019 supreme Court 2691. In this view of the matter, this Court finds for there is no infirmity in the trial court's order, there is no scope for interfering in the impugned order involved herein. 9. In result, the Civil Miscellaneous Petition fails. However, there is no order as to cost.