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2024 DIGILAW 2061 (ALL)

Pawan Kumar Srivastava v. Shaily Srivastava

2024-09-12

SUBHASH VIDYARTHI

body2024
JUDGMENT : Subhash Vidyarthi J. 1. Heard Shri Nilish Anand, the learned counsel for the petitioner. 2. By means of the instant petition filed under Article 227 of the Constitution of India, the petitioner is seeking following main reliefs:- “i. an Order or Direction to the Vth Additional Principal Judge Family Court, Lucknow to ignore the Written Statement submitted by the Opposite Party No. 1-Wife on 16.08.2023 after a delay of 5 years and after putting in appearance on 13.03.2018 in Regular Suit No. 2300 of 2016 Pawan Kumar Srivastava Versus Shaily Srivastava. ii. a direction to the Vth Additional Principal Judge Family Court, Lucknow to proceed with the Regular Suit No. 2300 of 2016 Pawan Kumar Srivastava Versus Shaily Srivastava in accordance with the provisions of Order VIII Rule 10 C.P.C.;” 3. The petitioner has impleaded the learned Additional Principal Judge V, Family Court, Lucknow as an opposite party to the petition, whereas as per law laid down by the Hon’ble Supreme Court in Savitri Devi Vs. District Judge, Gorakhpur; (1999) 2 SCC 577 and in Jogendrasinhji Vijaysinghji v. State of Gujrat, (2015) 9 SCC 1 , the Civil Courts ought not to be impleaded as opposite parties to the petitions filed in the High Courts. Accordingly, the learned counsel for the petitioner is directed to strike out the name of learned Additional Principal Judge V, Family Court, Lucknow, from the array of opposite parties forthwith. 4. The petitioner has pleaded that on 01.09.2016, he filed Regular Suit No. 2300 of 2016 for dissolution of marriage in the Court of Principal Judge, family Court, Lucknow, which was transferred to the Court of Additional Principal Judge, Court No V, Family Court, Lucknow. The suit was registered and admitted on the same date and summons were issued to the opposite party. The opposite party put in appearance in the suit on 22.05.2018 and she continuously appeared thereafter, but she did not file her written statement or any application for extension of time for filing the written statement, although Order VIII Rule 1 C.P.C. stipulates that a written statement has to be filed within 30 days, which period can be extended for a further period of 90 days only. On 10.08.2023, the petitioner filed an application (Paper No. C-20) under Order VIII Rule 10 C.P.C. praying for pronouncing judgment against the opposite party. On 10.08.2023, the petitioner filed an application (Paper No. C-20) under Order VIII Rule 10 C.P.C. praying for pronouncing judgment against the opposite party. The Family Court invited objections against the application, but instead of filing any objection, the opposite party filed her written statement on 16.08.2023, which has been accepted by the Family Court. 5. It is also mentioned in the petition that the suit was dismissed for default of the petitioner on 21.02.2019, he had filed an application for restoration on 01.07.2019 alongwith an application for condonation of delay, which was registered as Miscellaneous Case No. 11-C of 2019 and which was allowed by means of an order dated 25.04.2023, a copy whereof has been filed as Annexure No. 7 to the petition, Annexure No. 7 mentions the date of recall order to be 25.04.2024. 6. On 10.08.2023, the plaintiff filed an application under Order VIII Rule 10 CPC stating that the written statement had not been filed in accordance with the provisions of Order VIII CPC and, therefore, the Family Court should pronounce judgment as per the mandatory provisions contained in Order 8 CPC. The defendant appeared before the Family Court and filed her written statement on 16.08.2023 after serving a copy thereof on the plaintiff. 7. The Family Court has rejected the aforesaid application by means of the impugned order dated 16.05.2024 holding that there was no good ground for rejecting the written statement filed by the petitioner. 8. In the order dated 16.05.2024, the learned Additional Principal Judge, Family Court No.V, Lucknow has recorded that the petitioner filed Regular Suit No.2300 of 2016 on 01.09.2016. The Family Court had issued summons of the suit to the defendant but on 21.02.2021, the suit was dismissed due to non-appearance of the plaintiff. Before dismissal of the suit, the Family Court had not passed any order holding service of summons of suit upon the defendant to be sufficient. The plaintiff thereafter filed an application under Order IX Rule 9 CPC for setting aside the order dated 21.02.2021, which application was allowed by means of an order dated 25.04.2023, the order dated 20.02.2019 was set-aside and the suit was restored. 9. The plaintiff thereafter filed an application under Order IX Rule 9 CPC for setting aside the order dated 21.02.2021, which application was allowed by means of an order dated 25.04.2023, the order dated 20.02.2019 was set-aside and the suit was restored. 9. Assailing validity of the aforesaid order, the learned counsel for the petitioner has submitted that Order VIII Rule 1 C.P.C. mandates filing of a written statement within a period of 30 days, which can be extended for a further period of 90 days for reasons to be recorded in writing. As the defendant failed to file her written statement within the aforesaid period, the Family Court has no jurisdiction to accept the written statement of the defendant filed after an unreasonable delay and the written statement should not be read as part of pleadings while deciding the suit. The suit shall be decided in terms of Order 8 rule 10 CPC. 10. The learned counsel for the petitioner has relied upon a decision of the Hon’ble Supreme Court in the case of Desh Raj v. Balkishan; (2020) 2 SCC 708 , wherein the Hon’ble Supreme Court held that: - “15. …although the unamended Order 8 Rule 1 CPC 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 CPC 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 8 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.” 11. There can be no dispute against the aforesaid general proposition of law, but the principles of law are applied keeping in view the facts of the case. Here is a case where the plaintiff filed the suit for divorce on 01.09.2016. The opposite party put in appearance in the suit on 22.05.2018 but she did not file her written statement. The suit was dismissed for default of the petitioner on 21.02.2019. It was restored on 25.04.2023. Here is a case where the plaintiff filed the suit for divorce on 01.09.2016. The opposite party put in appearance in the suit on 22.05.2018 but she did not file her written statement. The suit was dismissed for default of the petitioner on 21.02.2019. It was restored on 25.04.2023. On 10.08.2023, the plaintiff filed an application under Order VIII Rule 10 C.P.C. The defendant filed her written statement on 16.08.2023. Thus the suit was lying dismissed for default of the petitioner for 4½ years and the opposite party cannot be blamed for this period of delay in disposal of the suit. 12. In Shalini Shyam Shetty v. Rajendra Shankar Patil: (2010) 8 SCC 329 , the Hon’ble Supreme Court has held that High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of courts inferior to it, nor can it, in exercise of this power, act as a court of appeal over the orders of the court subordinate to it. The High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, “within the bounds of their authority”. High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. The power is discretionary and has to be exercised on equitable principle. An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality. 13. The facts of the present case as discussed above make it manifest that the petitioner himself is to be blamed for the delay in disposal of the proceedings as the suit lied dismissed for default for 4½ years and it could not proceed any further. When the opposite party has already filed her written statement, the same cannot be ordered to be ignored, as it would occasion a failure of justice. 14. When the opposite party has already filed her written statement, the same cannot be ordered to be ignored, as it would occasion a failure of justice. 14. In the order dated 16.05.2024, the learned Additional Principal Judge, Family Court No. V, Lucknow has recorded that before dismissal of the suit, the Family Court had not passed any order holding service of summons of suit upon the defendant to be sufficient. The learned counsel for the petitioner has submitted that the aforesaid narration contained in the impugned order dated 16.05.2024 is factually incorrect as the defendant had appeared before the Family Court and signed on the order sheet 22.05.2018 and on subsequent dates. 15. The mere appearance of the defendant without summons of the suit having been served been served on her would not make the narration made in the order that the summons had not been served, factually incorrect and I find no force in the submission of the learned Counsel for the petitioner. 16. In view of foregoing discussion, this Court is of the considered view that there is no merit in the petition. Accordingly, the petition is dismissed at the admission stage itself.