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2021 DIGILAW 1152 (ALL)

Amit Kumar Singh v. Pushpa Devi

2021-09-30

SIDDHARTH

body2021
JUDGMENT : Hon'ble Siddharth, J. 1. Heard Sri Dinesh Kumar Singh, learned counsel for the revisionist and Sri Ajay Kumar Pandey, learned counsel for the opposite parties. 2. This S.C.C. Revision is directed against the order dated 24.11.2017 passed by 16th Additional District Judge, Varanasi in S.C.C. Suit No. 18 of 2016 (Pushpa Devi & another Vs. Amit Kumar Singh) whereby the opportunity of defendant/revisionist to file written statement has been closed and by the orders dated 27.02.2018 and 31.10.2018, the applications for recall of the order dated 24.11.2017 have been rejected. 3. The brief facts of the case are that S.C.C. Suit No.18 of 2016 was filed by plaintiffs/respondents praying for a decree of arrears of rent and eviction against the defendant/revisionist on 20.07.2016. The defendant/revisionist appeared in the aforesaid suit on 14.10.2016 and filed an application under Order 7, Rule 11 C.P.C. which was rejected on 13.08.2017. Another application praying for dismissal of the suit on the ground that the plaint averments regarding the ownership of the suit property are incorrect and they have not been corrected, was filed by the defendant/revisionist which was rejected by the order dated 24.11.2017 and opportunity of defendant/revisionist to file written statement has been closed. 4. Thereafter the defendant/revisionist has filed recall and review applications which have been dismissed by the trial court and hence, he is before this Court. 5. Learned counsel for the revisionist has submitted that the order dated 24.11.2017 passed by the court below is not in accordance with law. The court may have rejected the application (paper no. 75C) but the simultaneous closure of opportunity to file written statement is not in accordance with law. Order 8, Rule 1 C.P.C. is not mandatory but directory and written statement of the defendant can be taken on record after the expiry of 90 days from the date of service of notice. He has relied upon the judgement of the Supreme Court in the case of Zolba Vs. Keshao and others reported in MANU/SC/7444/2008, wherein the Apex Court has held that written statement of defendant can be accepted by the court after expiry of period of 90 days from the date of service of summons in exceptionally hard cases. Further reliance has been made on the judgement of this Court in the case of Farooque Vs. Additional District Judge, Balrampur and Ors. Further reliance has been made on the judgement of this Court in the case of Farooque Vs. Additional District Judge, Balrampur and Ors. reported in MANU/UP/1101/2019, wherein the court after granting last opportunity of filing written statement to the defendant, closed the same and the recall application filed for recalling the order, was rejected. This Court held that the provisions of Order 8, Rule 1 C.P.C. is not mandatory in nature and after setting-aside the impugned orders of the trial court, directed the court to accept the written statement of the defendant on record. Last reliance has been placed on the judgement of the Apex Court in the case of Robin Thapa Vs. Rohit Dora, AIR 2019 SC 3225 , wherein the Apex Court held that ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that as far as possible, adjudication be done on merits. The Apex Court set-aside the ex-parte decree in this case at the execution stage after imposing cost of Rs. 50,000/-on the defendant apart from the expenses incurred by the plaintiff in putting the decree of specific performance of contract of sale to execution. 6. Learned counsel for the plaintiffs/respondents has submitted that the court rightly closed the opportunity of the defendant/revisionist of filing written statement since he was filing frivolous applications one after the other and not filing written statement, only to delay the proceedings disregarding the mandate of Order 8, Rule 1 C.P.C. He has submitted that there are arrears of rent exceeding Rs. 45,00,000/-against the defendant. He has relied upon the judgement of the Apex Court in the case of Atcom Technologies Limited Vs. Y.A. Chunawala and Co. & Ors., 2018 (6) SCC 639 . In this case, the trial court accepted the written statement on record after 5 years and 54 days without assigning any cogent reasons. Hence, the Apex Court set-aside the same holding that the nature of provision contained in Order 8, Rule 1 C.P.C. is procedural and is not a part of substantive law and the court can condone larger delays but only in exceptional cases. 7. Hence, the Apex Court set-aside the same holding that the nature of provision contained in Order 8, Rule 1 C.P.C. is procedural and is not a part of substantive law and the court can condone larger delays but only in exceptional cases. 7. In the present case, the defendant/revisionist claims that he has put in appearance in the suit on 14.10.2016 and his opportunity of filing written statement was closed by the court while deciding his application (paper no. 75C) by the impugned order dated 24.11.2017 on the ground that he his delaying the proceedings. His recall application was also rejected without assigning sufficient cause. 8. This Court finds from the impugned order dated 24.11.2017 that the defendant/revisionist filed two applications, one after the other, but did not filed his written statement. Therefore, it appears that he does not wants to contest the suit. 9. A perusal of Order 8, Rule 1 C.P.C. shows that time limit of 90 days prescribed can be extended in appropriate cases. 10. In the case of Zolba (supra), Hon'ble Supreme Court has recorded the following finding on the point of Order 8, Rule 11 C.P.C. by holding that it is not mandatory in nature, in paragraph nos. 11, 13 and 15 : 11. Before we consider whether the provisions under Order 8 Rule 1 CPC are mandatory or directory in nature, we need to consider the provisions under Order 8 Rule 1 CPC which run as under: "1. Written statement.-The defendant shall, within thrity days from the date of service of summons on him, present a written statement of his defence: Provided that whether 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." 13. Considering the facts and circumstances of the present case and the statements made in the application for condoning the delay in filing the written statement, we are not in a position to hold that the appellant was not entitled to file the written statement even after the expiry of the period mentioned in the proviso to Order 8 Rule 1 CPC. After reading the provisions, in particular the proviso to Order 8 Rule 1 CPC, we are unable to hold that the provisions under Order 8 Rule 1 are mandatory in nature. 15. Therefore, following the principles laid down in the decision, as noted hereinabove, it would be open to the court to permit the appellant to file his written statement if exceptional circumstances have been made out. It cannot also be forgotten that in an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Therefore, unless compelled by express and specific language of the statute, the provisions of Order 8 Rule 1 CPC or any procedural enactment should not be construed in a manner, which would leave the court helpless to meet extraordinary situations in the ends of justice." 11. Likewise, in the case of Khadi Evam Gramodyog Board, Lucknow and others Vs. M/S Purvanchal Janta Gramin Sewa Sansthan and Another, 2014 (32) LCD 2225 , the Division Bench of this Court has recorded the following finding in paragraph nos. 40, 44, 52 and 53: "40. Under the old rule as it stood before amendments in 1999 and 2002, the defendant was required to file his written statement at or before the first hearing or within such time as the Court may permit. But Rule 1 in its present form has fixed a time limit within which written statement has to be filed. 44. In another case of Rani Kusum (supra), the Apex Court observed as under: Order VIII, Rule 1 after the amendment casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Further, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Further, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Substituted Order VIII, Rule 1 intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried. 52. Now applying the various judgements of Apex Court, it is clear that the provisions of Order 8 Rule 1 & 10 are directory in nature. In case in hand both the courts proceeded ex-parte against the defendant but there was an application moved by the appellant alongwith their written statement before trial court for accepting the same. However, the said application was rejected. 53. In our considered view, the Court should have adopted lenient view in this regard and the written statement filed by the appellant, should be taken by the Court." 12. Considering the above authorities, overall facts and circumstances of the case and the fact that the trial court never passed any order cautioning the defendant/revisionist about closure of his opportunity of filing written statement and directly closing the same while rejecting his application, this Court is of the view that one opportunity should have been given to the defendant/revisionist to comply the mandate of Order 8, Rule 1 C.P.C. In the case of Robin Thapa (supra), the Apex Court permitted the defendant to contest the suit after depositing the cost in execution proceedings of a decree for specific performance of contract. The Apex Court in the case of Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, AIR 2005 SC 3353 clearly held that the rules of procedure are made to advance the cause of justice and not to defeat it. Strict interpretation of Order 8 Rule 1 C.P.C. would defeat justice. 13. Accordingly, the impugned order dated 24.11.2017 passed by the court below is hereby set-aside. The defendant/revisionist is provided one opportunity of filing his written statement within period of two weeks from the date of this order subject to payment of Rs. Strict interpretation of Order 8 Rule 1 C.P.C. would defeat justice. 13. Accordingly, the impugned order dated 24.11.2017 passed by the court below is hereby set-aside. The defendant/revisionist is provided one opportunity of filing his written statement within period of two weeks from the date of this order subject to payment of Rs. 25,000/-as cost for contesting the present proceedings before this Court for no fault on the part of plaintiffs/respondents before filing their written statement. The court below will accept the written statement and proceed with the suit in accordance with law only after payment of cost of Rs. 25,000/-to the plaintiffs/respondents. 14. The revision is allowed. 15. However, there shall be no order as to costs.