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2023 DIGILAW 992 (JHR)

Amna Khatoon v. Bibi Madina

2023-08-07

PRADEEP KUMAR SRIVASTAVA

body2023
JUDGMENT : 1. Present writ petition has been preferred by the plaintiff/petitioner for quashing the order dated 05.12.2022 passed by learned Sub-Judge – V, Giridih in Partition Suit No. 66 of 2013 whereby and whereunder, the learned trial court has accepted the written statement filed by the defendant no. 6 rejecting the petition of the plaintiff/petitioner dated 12.08.2022. Brief background of the case: 2. The plaintiff/petitioner has instituted partition suit No. 66 of 2013 wherein after service of summons defendant nos. 3, 4 and 5 appeared and filed their written statement but defendant no. 2 to 6 did not appear, inspite of publication of summons in daily newspaper “Prabhat Khabar”. Substituted service through paper publication dated 03.03.2020 was deemed sufficient against the defendant no. 6 but he failed to file his written statement within statutory period of thirty days from the date of service of summons. 3. It is alleged that after lapse of two years defendant no. 6 filed his written statement on 20.01.2022 without taking leave of the court. The plaintiff/petitioner filed an application dated 06.06.2022 stating therein that the written statement filed by the defendant no. 6 is hopelessly barred by limitation and filed with malafide intention to linger the proceeding which may be rejected. 4. A rejoinder was also filed by the defendant no. 6 dated 21.07.2022 against the petition filed by the plaintiff/petitioner dated 06.06.2022 but the learned Sub-Judge – V, Giridih by impugned order has rejected the petition and objection filed by the plaintiff/petitioner. Arguments on behalf of petitioners 5. It has been submitted on behalf of the petitioner that the impugned order is totally illegal and based on conjecture and surmises and liable to be set aside. Admittedly, there was no application filed by the defendant no. 6 under Section 148 CPC for enlargement of time to file the written statement within the statutory period of thirty days as prescribed under Order 8 Rule 1 CPC or extended time of 90 days. The sole point for consideration raised by the learned counsel for the petitioner is against the accepting of belated written statement of respondent no. 6 which was hopelessly time barred as prescribed under Order 8 Rule1 CPC. Analysis of the relevant provision 6. The sole point for consideration raised by the learned counsel for the petitioner is against the accepting of belated written statement of respondent no. 6 which was hopelessly time barred as prescribed under Order 8 Rule1 CPC. Analysis of the relevant provision 6. Order 8 Rule 1 C.P.C., as amended by Act 46 of 1999 provides that the defendant shall within 30 days from the date of service of summons on him, present written statement of his defense. The rigour of this provision was reduced by amendment Act 22 of 2002 which enable the court to extend time for filing written statement, on recording sufficient reasons, therefore but the extension can be maximum of 90 days. The question is whether the court has power or jurisdiction to extend the period beyond 90 days. The maximum period of 90 days to file written statement has been provided but the consequences on failure to file written statement within the said period have not been provided for in Order 8 Rule 1 C.P.C. The point for consideration is whether the provision providing for maximum period of 90 days is “mandatory”? and, thereafter, the court is altogether powerless to extend the time even in exceptionally hard case? It has been common practice for the parties to take long adjournment for filing written statement. The legislature with a view to curve this practice and to avoid unnecessary delay and adjournments has provided for the maximum period within which the written statement is required to be filed. The mandatory or directory nature of Order 8 Rule 1 C.P.C. shall have to be determined by having regard to the object sought to be achieve by the amendment. It is thus necessary to find out the intention of the legislature. The consequences which may follow and whether the same were intended by the legislature have also to be kept in mind. 7. In the case of D. Parikh & Associates (Law Firm) in Salem Bar Association, the Apex Court has held : “21. There is no restriction in Order 8 Rule 1 C.P.C. that after the expiry of ninety days, further time cannot be granted. The court has wide power to ‘make such order about the suit as it thinks fit’. 7. In the case of D. Parikh & Associates (Law Firm) in Salem Bar Association, the Apex Court has held : “21. There is no restriction in Order 8 Rule 1 C.P.C. that after the expiry of ninety days, further time cannot be granted. The court has wide power to ‘make such order about the suit as it thinks fit’. Therefore, the provision of Order 8 Rule 1 C.P.C. providing for the upper limit of 90 days to file written statements is “directory” and not “mandatory”, the time can be extended only in exceptionally hard cases. While extending the 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 to nullify the period fixed by Order 8 Rule 1 C.P.C. 8. In the case of Atcom Technologies Limited vs. Y.A. Chunawala and Company and others (2018) 6 SCC 639 , Apex Court has held:- “21. In such a situation, onus upon the defendant is of the higher degree to plead and satisfactorily demonstrate a valid reason for not filling the written statement within thirty days. When that is a requirement, could it be a ground to condone the delay of more than 5 years even when it is calculated from the year 2009, only because of the reason that writ of summons was not served till 2009?” It is now well settled that: a. Order 8 rule 1 CPC is a provision which deals with the procedural law and not substantive right of the parties; b. The provision though couched in a negative language is not mandatory but directory; c. The court has enough power to condone the delay in filing written statement even beyond the stipulated period; d. However, it could be for exceptional reasons beyond the control of the party and only when the court thinks that by condoning the delay, it would advance the cause of justice; and e. In such a case, the plaintiff should be adequately compensated by cost. 9. 9. It appears from the impugned order that objection of the petitioner has been considered by the learned trial court while passing the impugned order and the learned court below has observed as under:- “Heard both the sides and perused the case record, this Title Suit is filed by the plaintiff namely Amna Khatoon and others against total six defendants. For the appearance of defendant no. 6, the order of substituted service (paper publication) was passed. Consequently, on 22.01.2020, plaintiff took steps for paper publication, Paper cutting is available on record whereby defendant no. 2 and 6 were directed to appear on 23.03.2020 before the court but on the very next dated, due to COVID – 19 pandemic, National Lockdown was announced. Thereafter, on 21.01.2022 defendant no. 6 appeared and filed W.S. Due to the outbreak of COVID – 19 with a view to ensure minimum disruption, court was running on virtual mode, during that period parties to the suit were facing various practical, technical as well as procedural difficulties pertaining to their respective litigations, perusing the record, it further transpires that the defendant no. 6 has neither been debarred from filing W.S. by this court nor the Ex-parte proceedings has been initiated and this petition is filed by the plaintiff on 12.08.2022 after filing of W.S. by defendant no. 6. Hence, the prayer of the plaintiff is disallowed and his petition dated 12.08.2022 is hereby rejected.” 10. It is obvious from the impugned order that the learned trial court has considered the “sufficient cause” which prevented the defendant no. 6 to file his written statement within time and also took notice of provision under Section 148 CPC for enlargement of the time for filing written statement. 11. In view of the aforesaid discussions and reasons, I find no valid reasons to admit this petition for hearing on merits and issue notice against respondents. Hence, this miscellaneous petition is hereby dismissed at present stage of the case without requiring notices to the opposite parties/respondents.