Indira Shah, J.(Cav)
1. By filing this revision petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 18.07.2012 passed by learned Munsiff No. 3, Kamrup, in Misc. (J) Case No. 472 of 2012 arising out of Money Suit No.300 of 2011.
2. I have heard Mr. B.D. Deka, learned Counsel appearing for the petitioner and also heard Mr. D. Barua, learned counsel appearing on behalf of the sole respondent.
3. The respondent, herein, as plaintiff instituted the money suit against the petitioner/defendant for recovery of sum of Rs.1,39,241/- with interest thereon. The petitioner filed written statement along with counterclaim on 14.02.2012. The plaintiff sought time on several occasions to file written statement against the counter claim filed by the petitioner. On 02.06.2012, the respondent-plain tiff sought for further adjournment but the learned Munsiff rejected the petition holding that statutory period of 90 days had expired and as such, the counter claim shall be proceeded ex-parte.
4. Subsequently, on 25.06.2012, the plaintiff filed a petition under Section 151 of the Code of Civil Procedure seeking recall of the order dated 02.06.2012 and also prayed to accept the written statement against the counterclaim. 'Hie learned Munsiff, after healing the parties, vide impugned order dated 18.07.2012 set aside the order dated 02.06.2012 and accepted the written statement filed by the plaintiff against the counter claim of the defendant.
5. Order 8, Rule 6 (A) says that the rules relating to written statement by a defendant shall apply to a written statement filed in answer to a counter claim and Rule 1 Order 8 speaks about the written statement, which speaks that the defendant shall within 30 days from the date of service of summons upon him, present and written statement of his defence.
Provided that where the defendant fails to file the written statement within the said period of 3 0 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 it shall not be later than 90 days from the date of service of summons.
6. Earlier, the prayer for adjournment seeking time to file written statement against the counter claim was rejected on the ground that the plaintiff could not file the written statement within statutory period of 90 days. It is submitted by the learned counsel for the petitioner that the learned trial Court in exercise of power under Section 151 of the Code of Civil Procedure cannot review its own order, more particularly, when remedy in the form of Section 114 of the Code of Civil Procedure and Article 227 of the Constitution of India was available.
7. In the case of Aditya Hotels (P) Limited v. Bombay Swadeshi Stores Limited & Ors., reported in (2007) 14 SCC 431, it was held that the extension of time, sought for by the defendant from the Court, whether 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for the asking, more so, when the period of 90 days has expired. The extension of time shall be only by way of an exception and for reasons assigned by the defendant and also recorded in writing, howsoever brief they may be, by the Court. In no case, shall the defendant be permitted to seek extension of time when the court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel.
8. In the case of Shaikh Salim Haji Abdul Kyayumsab v. Kumar & Ors., reported in (2006) 1 SCC 46, it was held in Para 9, 13, 14 and 15 as under:-
"9. The text of Order 8, Rule 1 , as it stands now, 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.
Order 8, Rule 1 after the amendment costs an obligation on the defendants to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Further, the nature of the provision contained in Order 8, Rule 1 is procedural. It is not a part of the substantive law. Substituted Order 8, Rule 1 is intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases, causing inconvenience to the plaintiffs and the petitioners approaching the court for quick relief and also the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied. Justice hurried may, in some cases amount to justice buried.
13. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the matter for the time being by or for the court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered more. A procedural law should not ordinarily be construed as mandatory; the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed.
14. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.
15. It is also to be noted that though the power of the court under the proviso appended to Rule 1 of the Order 8 is circumscribed by the words "shall not be later than ninety days" but the consequences flowing from non-extension of time are not specifically provided for though they may be read by necessary implication. Merely, because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form."
9. In the application, the respondent averred that one Manjoy Kumar Sharma was authorised to sign and verify the pleadings as well as to take steps for on behalf of the plaintiff but the counsel for the plaintiff was unable to get instructions to file written statement against the counter claim from Manoj Kumar Sharma. It was only after the order dated 02.06.2012, the counsel communicated to the plaintiffs Company and come to know that Sri Manoj Kumar Sharma is no longer in service of the plaintiffs Company since May, 2012. Therefore, for the lack
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of proper instructions, the counter claim proceeded ex-parte. 10. The learned trial Court has considered the entire aspect for proper adjudication of the case, accepted the written statement against the counter claim filed by the plaintiff by way of recalling the earlier order dated 02.06.2012. The court has inheritent power under Section 151 of the Code of Civil Procedure and therefore, this Court declines to interfere with the matter. 11. This revision petition accordingly stands dismissed and disposed of. Both the parties are directed to appear before the learned trial Court within 15 days and the learned trial Court shall proceed with the matter in accordance with law. 12. No costs. Let a copy of this judgment and order be furnished to the learned trial Court forthwith.