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2020 DIGILAW 481 (TS)

Sivella Yadaiah v. V. Pruthvi

2020-06-12

M.S.RAMACHANDRA RAO

body2020
JUDGMENT M.S.Ramachandra Rao, J. - The petitioners in all these Revisions are defendant Nos.1 to 7 in O.S.No.167 of 2014 and O.S.No.168 of 2014, and defendant Nos.1 to 6 and 8 in O.S.No.169 of 2014. 2. The above suits were initially filed by the respective 1st respondents in the Civil Revisions for cancellation of Deeds of Rectification and of Sale Deeds executed in 2013 etc. 3. The petitioners engaged a counsel after receiving summons and filed Vakalat through the counsel on 07.04.2014. They failed to file Written Statement till 30.10.2014 though nine adjournments were given. 4. On 30.10.2014, on account of failure of the petitioners to file Written Statements, their right to file Written Statement was forfeited. 5. In September, 2017, almost three years later after their right to file Written Statement was forfeited, the petitioners filed I.A.Nos.978 of 2017 in O.S.No.167 of 2014, I.A.No.979 of 2017 in O.S.No.178 of 2014, and I.A.No.980 of 2017 in O.S.No.169 of 2014 under Section 151 of Civil Procedure Code, 1908 to set aside the orders dt.30.10.2014 forfeiting their right to file Written Statements and to permit them to file Written Statements. 6. In the affidavit filed in support of these applications, the petitioners contended that after the suit was filed the petitioners, they wanted to resolve the issues amicably since filing of the Written Statement would precipitate the matter; they negotiated with the plaintiffs/respective 1st respondents who are their relatives and the latter agreed to withdraw the suits; that they expected the plaintiffs to withdraw the suits; that they were under the impression that the plaintiffs had withdrawn the suits; therefore, they did not even contacted their counsel and instructed him to file any Written Statements; and on 15.09.2017, they received a call from their counsel informing that an Advocate-Commissioner was appointed to record cross-examination of P.W.1, and that the Commission was fixed on 16.09.2017. They contended that they then contacted the plaintiffs in the suits to check whether the suits were withdrawn or not, but they gave evasive replies; that they thereafter contacted their counsel on 18.09.2017 and came to know that in view of non-filing of the Written Statements, the Court had forfeited their right to file Written Statements; that the case set up by the respective plaintiffs is false and incorrect and they would file a detailed Written Statements exposing the fraud played by the respective plaintiffs and so, opportunity be given to them to file such Written Statements by setting aside the orders dt.30.10.2014 in the respective suits forfeiting their right to file Written Statements. 7. Counter-Affidavit was filed by the respondents / plaintiffs opposing these applications. The plaintiffs contended that the petitioners deliberately did not bother to file Written Statements with the object of protracting the litigation, that they were actively watching the proceedings and the plea of petitioners that they did not file Written Statements in order not to precipitate the relationship between themselves and the respective plaintiffs is false and baseless. They denied the allegation that matter was settled after filing of the suits and that there was any understanding that the respective plaintiffs would withdraw the suits. They also pointed out that more than three years had occurred since the right of the petitioners to file Written Statements was forfeited and they cannot be permitted the file the same after ninety days. 8. By separate orders passed on 23.01.2020, the Court below dismissed I.A.Nos.978, 979 and 980 of 2017. It observed that petitioners failed to state when the actual talks for compromise began and at least when the talks were concluded and the respective plaintiffs agreed to withdraw the suits. It observed that there was no reasonable or acceptable explanation in the petition filed by the petitioners, and therefore, it cannot be allowed. It further observed that provisions of Order VIII Rule 1 of Civil Procedure Code, 1908 are procedural in nature and procedure is a hand-maid of justice; and that the applications cannot be allowed without giving any convincing and cogent reasons since delay cannot be condoned mechanically. 9. Assailing the same, the present Civil Revision Petitions are filed. 10. It further observed that provisions of Order VIII Rule 1 of Civil Procedure Code, 1908 are procedural in nature and procedure is a hand-maid of justice; and that the applications cannot be allowed without giving any convincing and cogent reasons since delay cannot be condoned mechanically. 9. Assailing the same, the present Civil Revision Petitions are filed. 10. The counsel for petitioners contended that the petitioners had bona fidely believed the matter was settled between the parties after filing of the suits and that was why they did not bother to file Written Statements, but they came to know only on 15.09.2017 that the suits have not been withdrawn by the respective plaintiffs / 1st respondents in the Civil Revision Petitions; and therefore, they had filed these applications to set aside the order dt.30.10.2014 forfeiting their right to file Written Statements in the suits; that grave prejudice would be caused to petitioners if the impugned orders are not set aside; and relied on the decision of the Supreme Court in Desh Raj vs. Balkishan,MANU/SC/0055/2020. 11. From the facts narrated above, it is clear that the petitioners who are defendants in the above suits engaged a counsel by filing Vakalats on 07.04.2014, but did not file any Written Statements till 30.10.2014 though nine times the matter was adjourned to enable them to file Written Statements. So, the Court below forfeited their right to file Written Statement on 30.10.2014. 12. As per Order VIII Rule 1 of Civil Procedure Code, 1908 [as amended by Act 46 of 1999] a defendant has to file Written Statement within thirty days from the date of service of summons on him. The rigor of this provision was reduced by Act 22 of 2002 which enables the Court to extend time for filing Written Statement on recording sufficient reasons therefor, but the extension can be maximum for (90) days. 13. This provision has been interpreted by a Three-Judge Bench of this Supreme Court in Salem Advocate Bar Association, T.N. vs. Union of India, (2005) 6 SCC 344 . 14. In Salem Advocate Bar Association (2 supra), the Supreme Court held that Rules of procedure are made to advance the cause of justice and not to defeat it and construction of the Rule or Procedure which permits justice and prevents miscarriage has to be preferred. 14. In Salem Advocate Bar Association (2 supra), the Supreme Court held that Rules of procedure are made to advance the cause of justice and not to defeat it and construction of the Rule or Procedure which permits justice and prevents miscarriage has to be preferred. It stated that Rules of Procedure are hand-maid of justice and not its mistress. It observed that the provision of Order VIII Rule 1 of Civil Procedure Code, 1908 provided for the upper limit of (90) days to file Written Statement is directory; but that an order extending time to file Written Statement cannot be made in a routine manner. It stated that time can be extended only in exceptionally hard cases, and 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 VIII Rule 1 of Civil Procedure Code, 1908. 15. In Kailash vs. Nanhku and others, (2005) 4 SCC 480 also this issue fell for consideration. The Court clarified that though the said provision has to be considered as directory and not mandatory, in exceptional situations only, the Court may extend the time for filing the Written Statement though the period of (30) days or (90) days which is referred in it had expired. It observed that extension can only be by way of an exception and for reasons assigned by the defendant and also recorded in writing by the Court to its satisfaction. It held that a departure from the time schedule prescribed by Order VIII Rule 1 of Civil Procedure Code, 1908 can be allowed only if the circumstances are exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended. 16. Even in Desh Raj (1 supra), cited by the counsel for petitioners, it was observed in para No.16 as follows : 16. However, it would be gainsaid that although the unamended Order VIII Rule 1 of Code of Civil Procedure is directory, it cannot be interpreted to bestow a free hand to on any litigant or lawyer to file written statement at their own sweet-will and/or to prolong the lis. However, it would be gainsaid that although the unamended Order VIII Rule 1 of Code of Civil Procedure is directory, it cannot be interpreted to bestow a free hand to on any litigant or lawyer to file written statement at their own sweet-will and/or to prolong the lis. The legislative objective behind prescription of timelines under the Code of Civil Procedure must be given due weightage so that the disputes are resolved in a time-bound manner. Inherent discretion of Courts, like the ability to condone delays Under Order VIII Rule 1 is a fairly defined concept and its contours have been shaped through judicial decisions over the ages. Illustratively, extreme hardship or delays occurring due to factors beyond control of parties despite proactive diligence, may be just and equitable instances for condonation of delay. 17. In view of these decisions, I shall consider whether the case of petitioners fall in the category laid down by the Supreme Court where extension of time can be granted and whether there was a bona fide reason for the petitioners for not filing the Written Statements within the time prescribed under Order VIII Rule 1 of Civil Procedure Code, 1908. 18. It is the contention of the counsel for petitioners that there was a compromise between themselves and the respective plaintiffs / 1st respondents in the Civil Revision Petitions immediately after the suits were filed and that believing that the respective plaintiffs would withdraw the suits they did not file Written Statements in the suits. 19. As rightly observed by the Court below there was no mention as to when the talks for compromise began, when they were concluded, and the respective plaintiffs agreed to withdraw the suits filed by them. In fact, the respective plaintiffs have denied that there was any such compromise or settlement and they had agreed to withdraw the suits filed by them. 20. Since the parties are related to each other closely, if there was any such settlement or understanding, it was the duty of the petitioners to ensure that follow-up steps would be taken by the respective plaintiffs to withdraw the suit. Admittedly, from 30.10.2014 till September, 2017 the petitioners did nothing and according to them, they did not even contact their counsel. 21. Admittedly, from 30.10.2014 till September, 2017 the petitioners did nothing and according to them, they did not even contact their counsel. 21. This conduct of the petitioners, in my considered opinion, shows that the petitioners were negligent or that they deliberately chose not to file Written Statements in the suits in spite of having engaged a counsel in their respective suits on 07.04.2014 and were merely watching the proceedings to see what was happening. Therefore, the conduct of petitioners is not bona fide and they are not entitled to any relief in these Civil Revision Petitions. 22. Accordingly, the Civil Revision Petitions are dismissed. No order as to costs. 23. As a sequel, miscellaneous petitions pending if any, in these Civil Revision Petitions, are closed.