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2021 DIGILAW 380 (JHR)

Sunita Devi v. Republic Tractor Motor Pvt. Ltd.

2021-04-09

RAJESH SHANKAR

body2021
JUDGMENT : The present case is taken up today through Video conferencing. 2. The present Civil Miscellaneous Petition has been filed for quashing the order dated 20.01.2020 (Annexure-4 to the writ petition) passed by the Civil Judge (Sr. Division)-I, Khunti in Original Suit No. 47 of 2018 whereby the petition dated 18.01.2020 filed by the petitioners (defendant nos. 2 to 16 in Original Suit No. 47 of 2018) for recalling the order dated 09.12.2019 (Annexure-2 to the writ petition), has been rejected. The petitioners have also prayed for quashing order dated 09.12.2019 whereby they were debarred from filing the written statements. 3. The learned counsel for the petitioners submits that the plaintiff/respondent no. 1 filed Original Suit No. 47 of 2018 seeking declaration of its right, title and interest upon the land in question as also for cancellation of sale deed executed by the defendant no. 1 (the respondent no. 2 herein) in favour of the defendant nos. 2 to 16/the petitioners. The defendant no. 1/respondent no. 2 as well as the defendant nos. 2 to 16/the petitioners appeared by filing Vakalatnama on 22.08.2019, however they did not file their written statements till 22.11.2019 i.e. even after lapse of 90 days and therefore they were debarred from filing of the written statements. It is further submitted that the petitioners will suffer irreparable loss and injury if they are not allowed to file written statements as well as in absence of any pleading on their behalf. The plaintiff/respondent no. 1 has made prayer for cancellation of the sale deed by virtue of which all the petitioners have purchased the suit property and are in possession thereof. They have also made construction over the same. It is also submitted that the court below has not at all considered the provisions of Order VIII Rule 1 of the Code of Civil Procedure (in short “ the CPC”) which is directory in nature and plaintiff could have been compensated with cost by allowing the petitioners to file written statements within a time frame or the next date fixed. It is further submitted that the petitioners are ready to cooperate in early disposal of the original suit. 4. It is further submitted that the petitioners are ready to cooperate in early disposal of the original suit. 4. The learned counsel appearing on behalf of the respondent no.1 submits that after receiving the notices, the defendants appeared and filed Vakalatnama on 22.08.2019 and thereafter they did not file written statement on several dates i.e 13.09.2019, 20.09.2019, 27.09.2019, 07.11.2019 and 09.12.2019 and as such the defendants were debarred from filing written statements vide order dated 09.12.2019. The petitioners did not give any plausible explanation for not filing the written statements within 90 days and accordingly their petition dated 18.01.2020 filed for recall of order dated 09.12.2019 has rightly been rejected by the court below vide order dated 20.01.2020. It is further submitted that Order VIII Rule 1 of the CPC specifically provides a timeframe for filing the written statement and the defendant is required to file the same within 30 days’ from the date of service of summons. The court however can accept filing of the written statement by recording reasons in writing, but the same should not be later than 90 days from the date of service of summons. In the instant case, the period of 90 days from the date of appearance for filing the written statements by the petitioners expired on 22.11.2019, but the defendants did not choose to file their written statements till 09.12.2019 and as such they were rightly debarred from filing the same by the court below. 5. Heard learned counsel for the parties and perused the materials available on record. The petitioners have been debarred from filing the written statement on the ground that they failed to file the same within the period of 90 days as prescribed under Order VIII Rule 1 of the CPC. The petitioners’ petition dated 18.01.2020 filed for recalling the order of debarment has also been rejected by the court below vide order dated 20.01.2020. 6. In the case of Atcom Technologies Ltd. Vs. Y.A. Chunawala & Co. reported in (2018) 6 SCC 639 , the Hon’ble Supreme Court has held as under:- “19. It has to be borne in mind that as per the provisions of Order 8 Rule 1 of the Code of Civil Procedure, 1908, the defendant is obligated to present a written statement of his defence within thirty days from the date of service of summons. It has to be borne in mind that as per the provisions of Order 8 Rule 1 of the Code of Civil Procedure, 1908, the defendant is obligated to present a written statement of his defence within thirty days from the date of service of summons. Proviso thereto enables the Court to extend the period up to ninety days from the date of service of summons for sufficient reasons. Order 8 Rule 1 of the Code of Civil Procedure, 1908 reads as under: “1. Written statement.—The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: 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 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.” 20. This provision has come up for interpretation before this Court in number of cases. No doubt, the words “shall not be later than ninety days” do not take away the power of the court to accept written statement beyond that time and it is also held that the nature of the provision is procedural and it is not a part of substantive law. At the same time, this Court has also mandated that time can be extended only in exceptionally hard cases. We would like to reproduce the following discussion from Salem Advocate Bar Assn. (2) v. Union of India, (2005) 6 SCC 344 : (SCC p. 364, para 21) “21. … 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 the 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. 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.” 7. In the case of Siddalingayya Vs. Gurulingappa reported in (2017) 9 SCC 447 , the Hon’ble Supreme Court has held as under:- “12. This case reminds us of the apt observations of a great Judge of this Court (Vivian Bose, J.). His Lordship, speaking for the Bench, in his inimitable style of writing said in Sangram Singh v. Election Tribunal, AIR 1955 SC 425 as under: (AIR p. 429, paras 16-17) “16. … 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 a 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. 17. … 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.” 13. 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.” 13. Keeping the aforementioned observations in mind and examining the facts of the case at hand, we are of the considered opinion that the High Court made no mistake in allowing the respondents' appeal and remanding the suit to the trial court for fresh trial on merits after affording an opportunity to the respondent-defendants to file their written statement to enable them to contest the suit on merits. 14. It is true that the time was granted to the defendants to file written statement initially before closing their right to file written statement, yet in our view, the trial court instead of closing their right to file written statement should have granted some time to the defendants subject to payment of reasonable amount of cost to the plaintiff to compensate the inconvenience caused to the plaintiff. The High Court was, therefore, right in imposing a cost of Rs 11,250 on the defendants to be paid to the plaintiff as a precondition to file the written statement within the extended time granted by the High Court. 15. In our view, here comes the application of observations of Vivian Bose, J. when his Lordship said: “16. … Too technical a construction of a section 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. 17. … 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.” 16. Having observed this, his Lordship cautioned: “17. … Of course there must be exceptions too and where they are clearly defined they must be given effect to.” and finally his Lordship concluded observing: (AIR p. 429, para 17) “17. Having observed this, his Lordship cautioned: “17. … Of course there must be exceptions too and where they are clearly defined they must be given effect to.” and finally his Lordship concluded observing: (AIR p. 429, para 17) “17. … 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.” 17. The approach of the High Court, which resulted in remand of the case to the trial court for deciding the suit on merits after affording full opportunity to the defendants to contest the case and, at the same time, making it obligatory to pay cost of Rs 11,250 to the plaintiff was, in our view, in tune with the aforementioned observations and did substantial justice to both the parties. 8. Thus, the law is now well settled that the time of 90 days prescribed for filing written statement under Order VIII Rule 1 of CPC in an ordinary suit is directory and not mandatory and the court has the discretion to grant further time to the defendant in exceptionally hard cases by directing the defendant to pay cost to the plaintiff so as to do substantial justice to both the parties. 9. In the case in hand, the petitioners have contended that plaintiff/respondent no.1 has filed the suit for cancellation of sale deed executed by the defendant no.1 in their favour. The petitioners have further contended that they have made construction over the said land and are in possession of the same as such if they are not allowed to file their written statements, they will suffer irreparable loss and injury. It appears that in the present case, there is not a huge delay in filing of the written statement and on the very next date of passing of order of debarment dated 09.12.2019, the petitioners filed petition for recall of the said order and prayed for allowing them to file written statements. 10. Under the aforesaid facts and circumstance, I am of the view that it would be in the interest of justice to allow the petitioners to file written the statements subject to payment of cost of Rs.5,000/- to the plaintiff to compensate it for the inconvenience caused for such delay. 10. Under the aforesaid facts and circumstance, I am of the view that it would be in the interest of justice to allow the petitioners to file written the statements subject to payment of cost of Rs.5,000/- to the plaintiff to compensate it for the inconvenience caused for such delay. The court below is directed to fix an early date for filing of the written statements by the petitioners along with payment of cost. It is however made clear that no further time will be allowed to the petitioners for filing of the written statements. 11. The writ petition is, accordingly, allowed with the aforesaid observation and direction.