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2020 DIGILAW 437 (HP)

Amrik Singh v. Gurbachan Singh

2020-07-15

SANDEEP SHARMA

body2020
ORDER : Sandeep Sharma, J. 1. Being aggrieved and dissatisfied with order dated 23.3.2019, passed by the learned Civil Judge-II Una, District Una, H.P., whereby defence of the petitioners-defendants'(hereinafter referred to as "the defendants") came to be closed defendants have approached this Court in the instant proceedings filed under Article 227 of the Constitution of India. 2. Having heard learned counsel for the parties and perused material available on record vis--vis reasoning assigned by the court below while passing impugned order, this Court though finds no illegality and infirmity in the same, because bare perusal of order itself reveals" that despite repeated opportunities, defendants failed to file written statement and as such, court proceeded to close their defence. 3. No doubt as per provisions contained under Order 8, Rule 1, CPC, defendants are required to file written statement within a period of thirty days, but such time can be further extended by the court up to ninety days as has been provided in the Proviso to Order 8, Rule 1, CPC. Otherwise also, it has been repeatedly held by the Hon'ble Apex Court as well as this court that whenever technicalities are pitted against substantial justice, it is the substantial justice, which is to prevail. It has been categorically held by the Hon'ble Apex Court in Salem Advocate Bar Association, T.N. v. Union of India, : (2005)6 SCC 344 : (ATR 2005 SC 3353), that rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. Hon'ble Apex Court has categorically held in the aforesaid judgment that the rules or procedure are handmaid of justice and not its mistress. While interpreting the word "shall" as provided Order 8, Rule 1, Hon'ble Apex Court has held that though use of the word "shall" is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The relevant paras of the judgment is reproduced herein-below:- "20. The use of the word 'shall' in Order 8, Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. The relevant paras of the judgment is reproduced herein-below:- "20. The use of the word 'shall' in Order 8, Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word 'shall' is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure are handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice. 21. In construing this provision, support can also be had from Order 8, Rule 10 which provides that 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, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to suit as it thinks fit. In the context of the provision, despite use of the word 'shall', the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order 8, Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order 8, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order 8, Rule 1. The effect would be that under Rule 10 of Order 8, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order 8, Rule 1. There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to 'make such order in relation to the suit as it thinks fit'. Clearly, therefore, the provision of Order 8, Rule 1 providing for upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8, Rule 1." 4. Consequently, in view of the above, present petition is allowed and impugned order dated 23.3.2019, is ordered to be quashed and set aside and the petitioners/defendants are directed to file, written statement on 4.8.2020 before the court below, subject to payment of costs amounting to Rs. 15,000/- payable to the plaintiffs. However, it is made clear that in case written statement is not filed within the time stipulated by this Court, impugned order quashed by this Court shall automatically revive and no more opportunity would be granted in this regard. Learned counsel for the parties undertakes to remain present before the court below on the aforesaid date, enabling it to proceed with the matter in accordance with law. Needless to say, till the time costs as quantified by this Court is not paid to the plaintiffs, written statement, if any, filed by the defendants shall not be taken on record. In the aforesaid terms, petition stands disposed of, so also, pending applications if any.