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2023 DIGILAW 164 (JK)

Kewal Krishan Sharma v. Rajinder Prasad Sharma

2023-04-26

WASIM SADIQ NARGAL

body2023
JUDGMENT : Wasim Sadiq Nargal, J. 1. Heard learned counsel for the parties and perused the record. 2. Admit. 3. Caveat No. 228/2023 shall stand discharged. 4. With the consent of learned counsel for the parties, the case is taken up for final disposal. 5. Through the medium of the present petition, the petitioner has invoked the jurisdiction of this court under Article 227 of the Constitution of India, assailing the order dated 25.01.2023 passed by the court of learned Sub-Registrar, Jammu, whereby the right of the petitioner to file the written statement has been closed and the case has been put up for the evidence of the respondent/plaintiff. 6. Learned counsel for the petitioner has further submitted that the respondent (plaintiff therein) filed a suit for ejectment, in order to evict the defendant (petitioner herein) from shop situated adjoining the gate of H. No. 312-A, Gandhi Nagar, Jammu known as Sharma Men's Wear Shop and the aforesaid shop is bounded as under: East: Bounded by House of plaintiff. West: Bounded by Main Road Apsara Road. North: Bounded by Plot 311-A. South: Bounded by Gate of plaintiff not even up to 8 ft. with a direction to the defendant to hand over the vacant possession of the shop to the plaintiff. 7. Further case of the petitioner is that petitioner is running the shop by the name and style of Sharma Men's Wear which is the sole source of earning not only for the petitioner but other tailors too, by providing the services of tailoring to their customers. It is further pleaded by the petitioner that the respondent is a Retired Professor of English from University of Jammu and his wife is also a Retired Professor from University of Jammu. 8. Further case of the petitioner is that he has received the summon in the aforesaid suit filed by the respondent on 20.05.2022 and the petitioner caused his appearance on 27.05.2022 and on the same date the learned counsel appearing for the petitioner filed Vakalatnama and received a copy of the plaint. That the written statement in the aforesaid suit was filed by the petitioner on 06.09.2022, meaning thereby that the written statement was filed by the petitioner after more than 90 days, more specifically on 101st day. 9. That the written statement in the aforesaid suit was filed by the petitioner on 06.09.2022, meaning thereby that the written statement was filed by the petitioner after more than 90 days, more specifically on 101st day. 9. Learned counsel for the petitioner further submits that the petitioner also moved an application for condonation of delay on 09.11.2022 in filing the written statement after conclusion of the arguments for taking on record the written statement. 10. The further case of the petitioner is that the court below struck off the defence of the petitioner (defendant) without considering the provisions of law, proviso to Order VIII Rule 1 of the CPC was substituted through the medium of S.O. 1123(E) of 2020, dated 18.03.2020 which is reproduced hereunder: “Provided that where the defendant fails to file the written statement [with] the said period of 30 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 twenty days from the date of service of summons and on expiry of one hundred 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.” 11. Learned counsel for the petitioner relied upon the judgment of Hon'ble Supreme Court of India in case titled Bharat Kalra v. Raj Kishan Chabra in which, it is held that “time limit for filing the written statement under Order VIII Rule 1 of Code of Civil Procedure, 1908 is not mandatory, if it is not a Commercial Suit under Commercial Courts Act, 2015.” 12. On the other hand, learned counsel for the respondent (Caveator) submits that the petitioner (defendant) has filed the written statement before the court below which is beyond statutory period prescribed for the filing written statement under Order VIII Rule 1 of Code of Civil Procedure and is not accompanied with any application for condonation of delay, initially, however, subsequently after the conclusion of arguments, the application for condonation was filed but no reason has been given in the application for condoning the delay in filing the written statement. 13. 13. Learned counsel for the respondent submits that petitioner has also having a Showroom in the Shop of House No. 443-A at Gandhi Nagar, Jammu and a Palatial Double Storey House at Channi Himmat, Jammu where the defendant is running Showroom and Workshop also. The defendant is a man of means and has kept luxurious vehicles for his comforts. 14. Learned counsel for the respondent further submits that the trial court rightly struck off the defence of the petitioner in view of the provision of Order VIII of CPC as the petitioner has not explained the delay in filing the written statement and the petitioner cannot invoke the provisions of Article 227 of the Constitution of India before this court. 15. Thus, challenge in the present petition is to an order passed by the court below on 25.01.2023 whereby the delay of 101 days in filing the written statement was not condoned. LEGAL ANALYSIS: 16. Admittedly, the suit for ejectment filed by the respondent (plaintiff) is not the one which is governed by the Commercial Courts Act, 2015. After the abrogation of Article 370 in August, 2019, Civil Procedure Code, 1908 was made applicable to the Union Territory of Jammu and Kashmir as well and in terms of S.O. 1123(E) of 2020, dated 18th March, 2020, certain amendments have been brought in the Civil Procedure Code, 1908, so far as its applicability to the Union Territory of Jammu & Kashmir is concerned. In terms of S.O. 1123(E) of 2020, dated 18th March, 2020, maximum period of 120 days was available to the defendant to file the written statement failing which it was made clear that the defendant will forfeit the right to file written statement and the Court by no stretch of imagination shall allow the written statement to be taken on record. A comparative analysis of relevant provision of Civil Procedure Code, 1908 as applicable to the rest of the India, Commercial Courts Act & Civil Procedure Code, 1908 as applicable to the Union Territory of Jammu & Kashmir is given below: Civil Procedure Code, 1908 applicable to whole India except UT of J&K Commercial Courts Act Civil Procedure Code, 1908 applicable to UT of J&K in terms of S.O. 1123(E) of 2020, dated 18th March, 2020 Order VII: Section 16 (C) in Order VIII: 1. The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Amendments to the Code of Civil Procedure, 1980 in its application to commercial disputes. (i) in Rule 1, for the proviso thereto, substitute the following proviso, namely: 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. (1) The provisions of the Code of Civil Procedure, 1908 (5 of 1908) shall, in their application to any suit in respect of a commercial dispute of a Specified Value, stand amended in the manner as specified in the Schedule. “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 twenty days from the date of service of summons and on expiry of one hundred 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.” Schedule (D) in Order VIII: (i) in Rule 1, for the proviso, the following proviso shall be substituted, namely: “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 twenty days from the date of service of summons and on expiry of one hundred 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.” 17. From bare perusal of the aforesaid table, it is emphatically clear that the provisions of the Commercial Courts Act, whereby, the limitation period of 120 days has been prescribed for filing the written statement has been held to be mandatory by the Hon'ble High Court of Delhi in its judgment titled Oku Tech Private Limited v. Sangeet Agarwal & Ors. MANU/DE/2036/2016. For facility of reference, relevant portion of the judgment is reproduced as under: “8. The amendments to the CPC brought out by the Schedule to the Act seek to fill the above gap, as it were, in the CPC. The substituted second proviso to Order V Rule 1 and the substituted proviso to Order VIII Rule 1 place an outer limit of 120 days from the date of service of summons up to which the Court can grant time to file written statement. It categorically states that “on expiry of 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 re-emphasised by inserting a proviso to Order VIII Rule 10 CPC, which after such insertion, reads as under: “10. Procedure when party falls 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 is relating to the suit as it thinks fit and on the 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.” 9. Therefore, it is plain that the above amendment reflects the legislative intent to take away the discretion of the Court in extending the time for filing the written statement. 13. For the aforementioned reasons, the Court declines the prayer for condonation of delay in Defendants 1, 3 and 5 filing their written statement.” 18. Therefore, it is plain that the above amendment reflects the legislative intent to take away the discretion of the Court in extending the time for filing the written statement. 13. For the aforementioned reasons, the Court declines the prayer for condonation of delay in Defendants 1, 3 and 5 filing their written statement.” 18. Even the Hon'ble Apex Court of the Country has also held that the period of 120 days prescribed for filing written statement is mandatory and the Court has no power to extend the same. Reliance is also placed on a judgment titled M/s SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. & Ors. (2019) 12 SCC 210 . Relevant part of the judgment is reproduced as under: “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 reasons 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. Several High Court judgments on the amended Order VIII Rule 1 have now held that given the consequence of non-filing of written statement, the amended provisions of the CPC will have to be held to be mandatory. [See Oku Tech Private Limited v. Sangeet Agarwal & Ors. by a learned Single Judge of the Delhi High Court dated 11.08.2016 in CS (OS) No. 3390/2015 as followed by several other judgments including a judgment of the Delhi High Court in Maja Cosmetics v. Oasis Commercial Pvt. Ltd. 2018 SCC Online Del 6698. [See Oku Tech Private Limited v. Sangeet Agarwal & Ors. by a learned Single Judge of the Delhi High Court dated 11.08.2016 in CS (OS) No. 3390/2015 as followed by several other judgments including a judgment of the Delhi High Court in Maja Cosmetics v. Oasis Commercial Pvt. Ltd. 2018 SCC Online Del 6698. We are of the view that the view taken by the Delhi High Court in these judgments is correct in view of the fact that the consequence of forfeiting a right to file the written statement; non-extension of any further time; and the fact that the Court shall not allow the written statement to be taken on record all points to the fact that the earlier law on Order VIII Rule 1 on the filing of written statement under Order VIII Rule 1 has now been set at naught. We are of the view that since both these judgments dealt with the pre-amendment position, they would not be of any direct reliance insofar as the facts of the present case is concerned.” 19. I am also fortified by the law laid down by the Hon'ble Apex Court in case titled Desh Raj v. Balkishan (D) through Proposed LRs. Ms. Rohini, (2020) 2 SCC 708 , wherein it has been observed as under: “The appellant's primary contention is that the reliance on Oku Tech (supra) was erroneous as it was rendered in light of Order VIII Rule 1 of CPC as amended by the Commercial Courts Act, 2015 which in turn was applicable to commercial disputes only. The present matter was highlighted as being non-commercial, and it was urged that the unamended Order VIII Rule 1 of CPC would be applicable, wherein no consequences for not complying with the shorter timeline of 90 days has been provided. This provision, it was contended, was merely procedural and concomitantly directory as held by this Court in various decisions including Salem Advocate Bar Association, T.N. v. Union of India, 2005 (3) RCR (Civil) 530 : (2005) 6 SCC 344 . Hence, it is clear that post coming into force of the aforesaid Act, there are two regimes of civil procedure. This provision, it was contended, was merely procedural and concomitantly directory as held by this Court in various decisions including Salem Advocate Bar Association, T.N. v. Union of India, 2005 (3) RCR (Civil) 530 : (2005) 6 SCC 344 . Hence, it is clear that post coming into force of the aforesaid Act, there are two regimes of civil procedure. Whereas commercial disputes [as defined under section 2(c) of the Commercial Courts Act, 2015] are governed by the CPC as amended by Section 16 of the said Act; all other non-commercial disputes fall within the ambit of the unamended (or original) provisions of CPC. The judgment of Oku Tech (supra) relied upon the learned Single Judge is no doubt good law, as recently upheld by this Court in SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. 2019 (2) RCR (Civil) 249 : AIR 2019 SC 2691 but its ratio concerning the mandatory nature of the timeline prescribed for filing of written statement and the lack of discretion with Courts to condone any delay is applicable only to commercial disputes, as the judgment was undoubtedly rendered in the context of a commercial dispute qua the amended Order VIII Rule 1 CPC.” 20. The language of the provisions of the Commercial Court's Act where the period of 120 days has been prescribed for filing the written statement has been held to be mandatory by the Hon'ble Apex Court. However, by way of amendment in terms of S.O. 1123(E) of 2020, dated 18th March, 2020, the same language has been incorporated in Civil Procedure Code, 1908 so far as its applicability to the Union Territory of Jammu and Kashmir is concerned which is evident from the bare perusal of the aforementioned table. 21. The law which has been laid down by the Hon'ble Apex Court with respect to Commercial Courts Act has been held to be mandatory because of the consequence for non-compliance cannot change its character because of its incorporation in Civil Procedure Code, 1908, so far as its applicability to the Union Territory of Jammu and Kashmir is concerned. 21. The law which has been laid down by the Hon'ble Apex Court with respect to Commercial Courts Act has been held to be mandatory because of the consequence for non-compliance cannot change its character because of its incorporation in Civil Procedure Code, 1908, so far as its applicability to the Union Territory of Jammu and Kashmir is concerned. The fact whether the suit is commercial or non-commercial, it does not make any difference because the language used in the Commercial Courts Act is pari materia to Civil Procedure Code, 1908, so far as its applicability to the Union Territory of Jammu and Kashmir is concerned with particular reference to S.O. 1123(E) of 2020, dated 18th March, 2020. CONCLUSION: 22. In the light of the aforesaid settled legal position, I am of the considered view that the purpose of providing the time schedule for filing the written statement is to expedite and not to scuttle the hearing. 23. Indisputably, the written statement has been filed by the petitioner beyond a period of 90 days i.e. specifically on 101st day but before 120 days and the petitioner has also filed an application seeking condonation of delay under some misconception of law that the outer limit for filing the said written statement applicable to the case of the petitioner is 90 days instead of 120 days. The fact of the matter is that after the abrogation of Article 370 in August, 2019, Civil Procedure Code, 1908 applicable to the Union Territory of Jammu and Kashmir in terms of S.O. 1123(E) of 2020, dated 18th March, 2020, wherein maximum period of 120 days was available to the defendant to file the written statement failing which the defendant ought to have forfeited the right to file written statement but in the present case, since the written statement has been filed within the outer limit of 120 days and the reasons for such delay although, have not been specified/pleaded in the application seeking condonation of delay yet this Court with a view to do substantial justice deem it proper to direct the trial court to take on record the written statement subject to the payment of costs in the light of law laid down by the Apex Court. 24. 24. The judgment relied upon by the petitioner in Bharat Kalra v. Raj Kishan Chabra, 2022 Live Law (SC) 465 is not applicable to the facts and circumstances of the case. The aforesaid judgment was passed before the amendment in the Civil Procedure Code wherein the outer limit of filing the written statement was 90 days but post abrogation, the time limit has been enhanced from 90 days to 120 days which has not yet lapsed in the present case as the application seeking condonation of delay has been filed by the petitioner before the trial court before the expiry of outer limit of 120 days, which ought to have been considered by the court below and there is no finding in this regard by the trial court. 25. Keeping in view the aforesaid peculiar facts and circumstances of the case coupled with the fact that the petitioner has filed an application seeking condonation of delay, this Court deems it proper to condone the delay in filing of the written statement which could well be compensated with costs but denying the benefit of filing of the written statement is unreasonable. 26. In the peculiar facts and circumstances of the case, I am of the considered view that the court below has not considered the amended provisions of the Code of Civil Procedure applicable to UT of J&K in terms of S.O. 1123(E) of 2020, dated 18th March, 2020 in its right perspective. 27. In view of the discussion made hereinabove, the present petition is allowed. Order dated 25.01.2023 passed by the court below is set aside. The written statement already filed is taken on record subject to the payment of costs of Rs. 10,000/-. The costs shall be deposited before the court below within fifteen days from today, which is to be paid to the opposite side. Thereafter, the court below shall proceed in the matter as per law. 28. Petition is disposed of along with connected applications.