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2024 DIGILAW 2399 (ALL)

Ghanshyam Das Agarwal v. Anoop Kumar

2024-11-23

NEERAJ TIWARI

body2024
JUDGMENT : Neeraj Tiwari, J. Heard Sri Tarun Varma alongwith Sri Ridham Gupta, learned counsel for the petitioner and Sri Ashok Malviya, advocate holding brief of Sri Bhanu Pratap Singh, learned counsel for the respondents. 2. Present petition has been filed with following prayer; ''Issue writ, order or direction in the nature calling for the record of the case and quashing the orders dated 13.9.2022 and 17.1.2023.'' 3. Learned counsel for the petitioner submitted that petitioner has filed Suit No. 363 of 2007 impleading the respondent Nos. 1, 2, 3, 4, 5, 6 and 7 as defendant Nos. 1, 2, 3, 4, 5, 6 and 7 respectively. In the said suit, notice was issued on 17.1.2018. Defendant No. 3 i.e. respondent No. 7, who is brother of other respondents after receiving notice, has filed written submission alongwith delay and considering the same in accordance with under Order 8 Rule 1 CPC, Court vide order dated 10.9.2021 has rejected the same. 4. He next submitted that notices were not served upon defendant Nos. 2, 4, 5, 6 and 7, therefore, petitioner/plaintiff has moved application 17Ga/18Ga for publication of summon in newspaper, which was allowed vide order dated 23.1.2018. Pursuant to that publication was made in newspaper on 7.2.2018 and submitted copy of newspaper alongwith application 19Ka2 before the Trial Court on 25.1.2018. After publication, for the first time, defendant Nos. 2 4, 5, 6 and 7 have filed application No. 47C dated 2.7.2022 alongwith affidavit on the ground that application 19Ka2 of the petitioner has not been disposed off, there is no order of Court about service of summon, only after perusal of order sheet, he could know about the facts and filed application with written submission. The said application was allowed by Civil Judge (Senior Divison), Gorakhpur vide order dated 13.9.2022. Against that petitioner has filed Civil Revision No. 89 of 2022 and revisional Court has affirmed the finding of Trial Court vide order dated 17.1.2023. He next submitted that Trial Court has passed the order dated 23.1.2018 for publication, which was immediately complied with and news paper was submitted before the Trial Court alongwith application 19Ka2. Therefore, it is duty upon the Court to dispose off the application and in case, same is not decided, petitioner is not responsible for that. He next submitted that Trial Court has passed the order dated 23.1.2018 for publication, which was immediately complied with and news paper was submitted before the Trial Court alongwith application 19Ka2. Therefore, it is duty upon the Court to dispose off the application and in case, same is not decided, petitioner is not responsible for that. In support of his contention, he has placed reliance upon the judgment of Madras High Court in the matter of Ramesh Flowers Private Limited v. Mr. Sumit Srimal; C.R.P. (MD) Nos. 1853 and 1854 of 2024. 5. He next submitted that alongwith application No. 47C dated 2.7.2022, no delay condonation application has been filed, even then, delay of more than one year has been condoned treating the written submission within time. He next submitted that in non commercial matter, provisions of Order 8 Rule 1 CPC is not mandatory, but in regular suit, if written submission has been accepted beyond limitation, reasons must have been assigned by the Court. He also pointed out that Case of defendant No. 3 is identical to the case of defendant Nos. 2, 4, 5, 6 and 7 whose written submissions have been rejected on the ground of delay. Therefore, this application may not having treated in time and be rejected. He next submitted that finding of the Trial Court is absolutely perverse and Court relying upon some judgments has held that those are related to Commercial dispute. He next submitted that petitioner is not treating any parity with commercial case and his case is undisputedly not a commercial case. Even that in case, if written submission is accepted beyond the limitation provided under Order 8 Rule 1 CPC, reasons must have been recorded, which is absolutely missing in the impugned order dated 13.9.2022. In support of his contention, he has placed reliance upon the judgment of Apex Court in the matters of Atcom Technologies Ltd. v. Y.A. Chunawala & Co.; (2018) 6 SCC 639 and Desh Raj v. Balkishan (dead) Through Proposed Legal Representative Ms. Rohini; (2020) 2 SCC 708 . 6. Per contra, learned counsel for the respondents has vehemently opposed the submission made by learned counsel for the petitioner and submitted that case of the respondents is not a commercial case, therefore, written submission may be accepted even after 90 days as provided under Order 8 Rule 1 CPC. Rohini; (2020) 2 SCC 708 . 6. Per contra, learned counsel for the respondents has vehemently opposed the submission made by learned counsel for the petitioner and submitted that case of the respondents is not a commercial case, therefore, written submission may be accepted even after 90 days as provided under Order 8 Rule 1 CPC. He next submitted that Court has not passed the order upon the application 19Ka2 about service of summon, therefore, it is open for the defendants to file written submission before the Trial Court for disposal of suit and that would have been treated in time. He next submitted that his case may not be compared with defendant No. 3 as both are standing on entirely different footing. Trial Court has decided the issue after considering the various judgment. He also pointed out that suit is still pending and in case objection is rejected, defendants would suffer irreparable loss. 7. In rejoinder argument, learned counsel for the petitioner submitted that defendant Nos. 2, 4, 5, 6 and 7 have not come with clean hands before the Court. He pointed out that all the defendants are brothers residing in the same premises i.e. address of defendant No. 3. Even, in counter-affidavit filed before this Court, he had written same address. In fact, they were having full knowledge of pendency of suit and one of their brother has made an attempt to file written submission and same was rejected, but they have not turned up and not disclosed any reason as to how they went to Court and obtained information about pendency of Suit. 8. I have considered the rival submissions advanced by learned counsel for the parties and perused the record as well as judgments relied upon. 9. Undisputedly, Suit No. 363 of 2007 was filed against the real brothers, residing in the same premises and out of them, defendant No. 3 has received the notice. Ultimately, he has filed written submission with delay, which was rejected vide order dated 10.9.2021. 10. Further, as the notice was not served upon defendant Nos. 2, 4, 5, 6 and 7, petitioner has moved application for publication in newspaper, which was allowed vide order dated 23.1.2018. Pursuant to that, publication was made on 7.2.2018 and application 19Ka2 alongwith news paper also been filed before the Trial Court. Upon which, Trial Court has not passed any order for disposal. 2, 4, 5, 6 and 7, petitioner has moved application for publication in newspaper, which was allowed vide order dated 23.1.2018. Pursuant to that, publication was made on 7.2.2018 and application 19Ka2 alongwith news paper also been filed before the Trial Court. Upon which, Trial Court has not passed any order for disposal. Defendant Nos. 2, 4, 5, 6 and 7 has filed application dated 2.7.2022 alongwith affidavit for filing written submission only on the ground that application 19Ka2 has not been disposed of. Thereafter, written submission was treated in time application was allowed by the impugned order dated 13.9.2022 and affirmed by the revisional Court vide order dated 17.1.2023. 11. Learned counsel for the petitioner has rightly pointed out that order of publication is complied with and application alongwith publication has been submitted before the Trial Court. In case, order of disposal has not been passed upon the said application, petitioner is not responsible for the same and for that, he should not be put to any disadvantageous position. In the impugned order, it is observed that publication was made and application 19Ka2 has been filed, which has not been disposed of by the Trial Court. It is very surprising that on one hand, it is accepted by the Trial Court that application alongwith news paper has been filed, but the same was not disposed of, which is inaction on the part of Court itself and on the other hand, benefit of same is given to the defendants, which cannot be accepted. The similar issue was before the Madras High Court in the matter Ramesh Flowers Private Limited (supra) and Court has taken very same view. Relevant paragraphs are being quoted below; ''9. I am not able to agree with the contention of the learned counsel appearing for the respondent. No doubt, the mistake of the Court should not harm a party. But, no party can take advantage of the lapse committed by the Court particularly when it is contrary to the statute. It was held in Athiappa Gounder v. Athiappa Pandaram, (1967) 1 MLJ 392 (FB), that the maxim could be invoked and applied in individual cases to a party who has done all he should do under the statute and is prejudiced solely by the delay or mistake of the Court. It was held in Athiappa Gounder v. Athiappa Pandaram, (1967) 1 MLJ 392 (FB), that the maxim could be invoked and applied in individual cases to a party who has done all he should do under the statute and is prejudiced solely by the delay or mistake of the Court. When the statute has prescribed a certain time line, it was incumbent on the part of the defendant to adhere to the same. If he is unable to do so, he must offer a proper explanation and seek condonation. Without doing so, the defendant cannot ride piggy back on the mechanical endorsements made by the trial Court. I hold that the defendant cannot take advantage of the aforesaid maxim.'' 12. Now other arguments of learned counsel for the parties are concerned, Order 8 Rule 1 CPC shall only be mandatory in case of commercial matters and not in non commercial matters. For ready reference, Order 8 Rule 1 CPC is quoted below; ''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.'' 13. In the application, petitioner himself stated that it is a non commercial case, therefore, Order 8 Rule 1 CPC is not mandatory and in an exceptional case, written submission may also be accepted beyond the time i.e. 90 days, but for that, reasons are required to be stated. Trial Court while deciding the issue relied on the pretext that Order 8 Rule 1 CPC is mandatory only for the commercial case and as the present case is not commercial. There is no dispute on the point that Order 8 Rule 1 CPC is not mandatory in non commercial case, but even though in an exceptional case, it is required on the part of Court to record findings for accepting the written submission beyond limitation, which is absolutely missing in this matter. Therefore, such finding is absolutely perverse. 14. There is no dispute on the point that Order 8 Rule 1 CPC is not mandatory in non commercial case, but even though in an exceptional case, it is required on the part of Court to record findings for accepting the written submission beyond limitation, which is absolutely missing in this matter. Therefore, such finding is absolutely perverse. 14. It is also undisputed that alongwith written submission, no application for condoning the delay alongwith reasons have been filed, but Trial Court without considering the mandate of Order 8 Rule 1 CPC, interpreted by the Courts from time to time, has straightway allowed the application absolutely on different facts. It is mandatory requirement to record reasons for accepting the written submission, if filed beyond limitation given in Order 8 Rule 1 CPC even if, the matter is non commercial in nature. In impugned orders, no reasons have been assigned by the Court as to why written submission is accepted beyond limitation without accompanied with delay condonation application. Therefore, orders are absolutely bad. 15. The Apex Court in the matter of Atcom Technologies Ltd. (supra) has taken the very strict view that onus upon the defendant is of a higher degree to plead and satisfactory demonstrate a valid reason for not filing the written statement. Relevant paragraphs are being quoted below; ''18. We shall proceed on the basis that summons in Suit No. 4870 of 1999 were served only in the year 2009. In this behalf, it may be stated that in this suit, unconditional leave to defend was granted by the learned Single Judge on March 16, 2002. By the same order, all three suits were directed to be tried together. Therefore, Vakalatnama in the suit was also filed and on the dates fixed before the Court, respondents were appearing having knowledge about the Suit No. 4870 of 1999 as well. Obviously, this leave to defend was granted after the respondents had put in appearance and filed application for grant of leave to defend. Thus, summons in the suit were served upon the respondents, albeit, in Form 4 of Appendix B, as stipulated in Rule 2 of Order 37 of Civil Procedure Code, 1908. May be, thereafter, Writ of Summons were not served again upon the respondents. However, in any case, these summons were served in the year 2009. Thus, summons in the suit were served upon the respondents, albeit, in Form 4 of Appendix B, as stipulated in Rule 2 of Order 37 of Civil Procedure Code, 1908. May be, thereafter, Writ of Summons were not served again upon the respondents. However, in any case, these summons were served in the year 2009. Therefore, it was incumbent upon the respondents to show as to in what manner they were prevented from filing the written statement. 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. Proviso thereto enables the Court to extend the period upto 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 Association v. Union of India, (2005) 6 SCC 344 : ''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''. ...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. 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.''� 21. In such a situation, onus upon the defendant is of a higher degree to plead and satisfactorily demonstrate a valid reason for not filing the written statement within thirty days. When that is a requirement, could it be a ground to condone delay of more than 5 years even when it is calculated from the year 2009, only because of the reason that Writ of Summons were not served till 2009? 22. We fail to persuade ourselves with this kind of reasoning given by the High Court in condoning the delay, thereby disregarding the provisions of Order 8 Rule 1 of the Code of Civil Procedure, 1908 and the spirit behind it. This reason of the High Court that delay was condoned 'by balancing the rights and equities' is far-fetched and, in the process, abnormal delay in filing the written statement is condoned without addressing the relevant factor, viz. whether the respondents had furnished proper and satisfactory explanation for such a delay. The approach of the High Court is clearly erroneous in law and cannot be countenanced. No doubt, the provisions of Order 8 Rule 1 of the Code of Civil Procedure, 1908 are procedural in nature and, therefore, hand maid of justice. However, that would not mean that the defendant has right to take as much time as he wants in filing the written statement, without giving convincing and cogent reasons for delay and the High Court has to condone it mechanically.''� 16. However, that would not mean that the defendant has right to take as much time as he wants in filing the written statement, without giving convincing and cogent reasons for delay and the High Court has to condone it mechanically.''� 16. Again the similar issue was before the Apex Court in the matter of Desh Raj (supra). Relevant paragraphs are being quoted below; ''13. As regard the timeline for filing of written statement in a non-commercial dispute, the observations of this Court in a catena of decisions, most recently in Atcom Technologies Ltd. v. Y.A. Chunawal and Co. holds the field. Unamended Order VIII Rule I, CPC continues to be directory and does not do away with the inherent discretion of Courts to condone certain delays. 14. Let us, therefore, consider whether the appellant has made out a case of exercising such discretionary jurisdiction? The present civil suit had been filed by the respondent for a decree of specific performance of an agreement to sell one floor of an ancestral property located in Devli Village, Delhi and permanent injunction against alienation of the same by petitioner to third parties. Counsel for respondent has not contested the non-commercial nature of the dispute, and even independently we are satisfied that the dispute does not fall within the parameters specified under Section 2(c) of the Commercial Courts Act, 2015 and in particular sub-clause (vii), as the immovable property here is not of a nature which is ''used exclusively in trade or commerce''. Hence, the appellant is correct in contending that the High Court overlooked the nature of the dispute and mistakenly applied the ratio of a case rendered in light of a modified version of the Code of Civil Procedure, which would only be applicable to commercial disputes. 15. However, it would be gainsaid that although the unamended Order 8 Rule 1 of 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 VIII Rule 1 is a fairly defined concept and its contours have been shaped through judicial decisions over the ages. 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 VIII 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. 16. However, it is clear from the facts on record that numerous opportunities had been accorded to the appellant. He was served on 1.5.2017 and entered appearance through counsel on 15.5.2017. As per Order 8 Rule 1 of CPC, the appellant ideally ought to have filed his written statement by 31.5.2017; and at the very latest by 30.7.2017. In addition to two separate deadlines for filing of the written statement within the 90-day time-frame prescribed by the 'original' Order VIII Rule 1, the Civil Court even post expiry of the 90-day period again gave one last and final opportunity on 18.9.2017 subject to payment of costs of Rs 3,000. None of these deadlines were complied with. Even on 11.10.2017, when the Court finally closed the appellant's ability to file written statement and struck-off his defence from the record, no attempt was made to comply with the process of law. 17. It was only on 2.11.2017, after a delay of 95 days post the maximum extendable period under the Proviso of Order VIII Rule 1, CPC that the appellant claimed to have filed his written statement. Curiously however, even by the next hearing on 3.11.2017, the appellant had failed to provide a copy of the written statement to the respondent as had been noted by the Civil Court. 18. The only defence taken to these repeated and blatant lapses is that the appellant's counsel was not turning up. No attempt has been made to even proffer a reasoned justification or explanation, and it is clear that appellant is seeking condonation in a casual manner. This ought not to be permitted or encouraged. Courts must act stringently to ensure that all proceedings are decided within reasonable time, and it is but the duty of the judicial system to cultivate a culture of respecting deadlines and time of the Court, its officers as well as of adversaries. 19. This ought not to be permitted or encouraged. Courts must act stringently to ensure that all proceedings are decided within reasonable time, and it is but the duty of the judicial system to cultivate a culture of respecting deadlines and time of the Court, its officers as well as of adversaries. 19. Routine condonations and cavalier attitudes towards the process of law affects the administration of justice. It affects docket management of Courts and causes avoidable delays, cost escalations and chaos. The effect of this is borne not only by the litigants, but also commerce in the country and the public-in-general who spend decades mired in technical processes. 20. It is obvious from the record that nothing prevented the appellant from filing the written statement through counsel or in person. He has, thus, failed to give any cogent reason for the delay and is unable to satisfy due diligence on his part though he is right in his submission that the High Court erroneously relied upon the ratio of Oku Tech.'' 17. Therefore, in light of Order 8 Rule 1 CPC alongwith interpretation made by the Court, it is absolutely clear that limitation under Order 8 Rule 1 CPC cannot be extended in routine manner and shall only be done in exceptional case and further in such cases, it is required on the part of Court to give reasons for condoning the delay. 18. It is very surprising that application filed by the defendants for filing written submission is based upon only one ground that application 19Ka2 has not been disposed of and contrary to that, application was allowed distinguishing the case of defendant Nos. 2, 4, 5, 6 and 7 with defendant No. 3. 19. Once, there is no such pleading in the application, Court cannot impose its own finding beyond the pleading, therefore, this finding is also absolutely perverse. Therefore this cannot be a ground for allowing the application filed by defendant Nos. 2, 4, 5, 6 and 7. In fact, neither in application nor in pleading, no such parity has been claimed from defendant No. 3 itself and Court has imposed its own finding beyond pleading. 20. In fact, it is required on the part of Trial Court to decide the application 19Ka2, which was not decided, but Trial Court has given benefit of its own inaction to the defendant Nos. 20. In fact, it is required on the part of Trial Court to decide the application 19Ka2, which was not decided, but Trial Court has given benefit of its own inaction to the defendant Nos. 2, 3, 4, 5, 6 and 7 which is not permissible in law. 21. Now, coming to the consequences of non disposal of application 19Ka2. Once, it is undisputed that publication has been made and application has been filed before the Trial Court, in all eventuality, notice is deemed to be served after 90 days from the date of submission of application alongwith publication before the Trial Court. Therefore, notice is sufficient. 22. In view of the facts and law discussed hereinabove, orders dated 13.9.2022 and 17.1.2023 are set aside and writ petition is allowed. 23. No order as to costs.