(Prayer: This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the order impugned dated 25.2.2017 passed by the XIX Additional City Civil Judge Bangalore On I.A.No.5 in O.S.No.6962/2015 Vide Annexure-D and allow the writ petition.)
1. Though the matter is posted for consideration of I.A.1/18 for vacating the stay, by consent of both the parties, the same is taken up for final hearing.
2. The 2nd defendant filed the present writ petition against the order dated 25.2.2017 made in O.S.6962/2015 on I.A.5 on the file of the XIX Additional City Civil Judge, Bangalore rejecting the application filed under Section 151 of the Code of Civil Procedure for permission to file written statement.
3. The respondent, who is the plaintiff before the trial Court filed a suit for recovery of Rs.15,95,104/- with interest at 24% per annum from 27.9.2013 till the date of payment contending that the 2nd defendant was desiring to purchase a fermentation system and its utilities from a supplier and that the plaintiff being genuine supplier of the same, the 2nd defendant approached him seeking to supply the same. Accordingly, the plaintiff supplied the materials of fermentation system and its utilities and it was the duty of the 2nd defendant as per the agreement to pay due amount with interest within due date but the same was not paid. Therefore, the plaintiff after issuing legal notice filed a suit for the relief sought for.
4. Before the trial Court, defendant No.1 was placed exparte. When the matter was posted for evidence, at that stage, the 2nd defendant filed an application under Section 151 of the Code of Civil Procedure seeking permission to file written statement along with objections to I.A. for injunction contending that the plaintiff filed a suit against them for recovery of amount. After receipt of the summons, the advocate on record filed vakalath on 22.9.2015 and thereafter, he was not able to file written statement within time due to his illness. It was further contended that if the application for filing written statement is not allowed, defendant No.2 would be put to great hardship, loss and damage and it cannot be compensated in terms of money. On the other hand, if the application is allowed permitting the defendants to file written statement, no prejudice would be caused to the plaintiff.
5. The said application was opposed by the plaintiff contending that the very application filed was not maintainable. The contentions urged in the affidavit filed in support of the application are erroneous and completely false and the application was barred by limitation. Though defendant No.2 appeared and filed Vakalath on 22.9.2015 but sought time to file objections. Counsel for defendant No.2 had been appearing before the Court, but he did not file written statement. When the trial Court by the order dated 11.1.2016 held that the written statement was not filed and posted the matter for plaintiff's evidence, thereafter, the application came to be filed. There is a delay of approximately one year. Therefore, he contended that the application not maintainable and sought for dismissal of the same.
6. The trial Court considering the application and objections, rejected the application. Hence, the present writ petition.
7. I have heard the learned Counsel for the parties to the lis.
8. Sri Krishnamoorthy D., learned Counsel for petitioner-defendant No.2 contended that the impugned order passed by the trial Court rejecting the application filed under Section 151 of the Code of Civil Procedure seeking permission to file written statement is erroneous and contrary to the material on record. He would further contend that time fixed for filing written statement was directory and not mandatory and time can be extended for filing written statement even beyond 90 days in view of the dictum of the Hon'ble Supreme Court. He would further contend that though the transaction between the parties is commercial, in view of the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 120 days time has to be granted for filing written statement, but the trial Court has proceeded to reject the same mainly on the ground that 90 days had elapsed and no reasons are assigned for the delay. He would further contend that when rights of the parties are involved in a suit for recovery of Rs.15,95,104/- from the defendant, if an opportunity is not given, the 2nd defendant would be put to great hardship and suit cannot be decreed by placing him exparte for not filing the written statement. Therefore, he sought to quash the impugned order passed by the trial Court by allowing the petition.
9. Per contra, Sri Sreeram Singh, learned Counsel for the plaintiff sought to justify the impugned order and contended with vehemence that though the 2nd defendant appeared through advocate and the advocate filed power on 22.9.2013, he has not filed written statement within the period prescribed. Therefore, the trial Court by the impugned order dated 11.1.2016 recorded that the written statement by the 2nd defendant as nil and posted the matter for evidence. At that stage, the present application is filed. Absolutely no sufficient reasons are assigned to condone the delay and to permit the 2nd defendant to file written statement. In view of the amendment of provisions of Order 8 Rule 1 of the Code of Civil Procedure, the 2nd defendant is bound to file written statement on or before 21.1.2016 but the same was not filed. Therefore, he sought to dismiss the writ petition.
10. Having heard the learned Counsel for the parties, it is an undisputed fact that the plaintiff- respondent filed a suit against the petitioner-2nd defendant for recovery of Rs.15,95,104/- as arrears for supply of fermentation system and its utilities raising various contentions. It is also not in dispute that though 2nd defendant filed Vakalath on 22.9.2013, written statement ought to have been filed on or before 21.1.2016 but he did not file because of his illness and therefore, he could not meet advocate within time. It was also contended that if permission was not granted to file written statement, the plaintiff will succeed on account of non filing of the written statement by him and therefore, sought to allow the application.
11. Though the learned Counsel for the respondent contended that time specified for filing written statement under Order 8 Rule 1 of the Code of Civil Procedure is mandatory, it should not be allowed to file beyond 90 days which cannot be accepted in view of the fact that the Hon'ble Supreme Court while considering the provisions of Order 8 Rule 1 of the Code of Civil Procedure held that the provisions of Order 8 is not mandatory and it is only directory and filing of the written statement is to expedite and not to scuttle the hearing. It does not impose an embargo on the power of the Court to extend the time. In an exceptional case, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended and the Court can allow the application by imposing costs.
12. Admittedly in the present case, if the petitioner is not permitted to file written statement, definitely it would prejudice the case of the petitioner since the suit is filed for recovery of Rs.15,95,104/- against the defendants. That is not the intention of the Legislature while enacting the provisions of Order 8 Rule 1 of the Code of Civil Procedure.
13. The trial Court while rejecting the application recorded a finding that the defendant has not filed the application within 90 days. Therefore, the application cannot be allowed. The trial Court failed to notice that when rights of the parties are involved in respect of recovery of amount of Rs.15,95,104/- the trial Court ought to have given an opportunity to file written statement by imposing costs in order to do justice between the parties. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that the delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
14. The Hon'ble Supreme Court while considering the Provisions under Order VIII, Rule 1 of CPC in the case of Sandeep Thapar v. SME Technologies (P) Ltd., reported in AIR (2014) 2 Supreme Court 302 relying upon its earlier judgment in the case of Kailash V/s. Nanhku and Others reported in AIR (2005) 4 SCC 480, has held as under:
"filing the written statement under Order VIII, Rule 1 of CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though, the language of the proviso to Rule 1 of Order VIII of CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the Procedural Law, it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by Order VIII, Rule 1 of the CPC is not completely taken away.
Though Order VIII, Rule 1 of the CPC is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of exception, for the reasons to be assigned by the defendant also be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case."
15. This Court while considering the similar question in identical circumstances in the case of Sri Kempegowda -vs- Smt. Venkamma in W.P.No.41017/2016 D.D. 21st March, 2017 considering the judgment of the Hon'ble Supreme Court as stated supra at para-11 has held as under:
11. In view of the law declared by the Hon'ble Supreme Court, it is clear that the provisions of Order VIII Rule 1 of Code of Civil Procedure is not a mandatory, it is only a directory. The filing of the written statement is to expedite and not to scuttle the hearing. It does not impose an embargo on the power of the Court to extend the time. The defendant has made out a case, the circumstances which are exceptional, occasioned by reason beyond the control of the defendant and grave injustice would be occasioned if the time to file written statement was not extended. Therefore, the
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application filed by the defendant is ought to be allowed. It is also clear that the defendant though the member of joint family dragged the matter for more than 8 years to file written statement and unnecessarily approached this Court by challenging the order passed by the trial Court for dismissing the permission to file written statement. Therefore, the defendants have to pay costs of the litigation to the plaintiffs upon dragging the proceedings from the year 2008 to 2011 for a sum of Rs.12,000/- (Rupees twelve thousand only) on the next date of hearing. 16. In view of the aforesaid reasons, writ petition is allowed. The impugned order passed by the trial Court rejecting the application I.A.5 filed under Section 151 of the Code of Civil Procedure is quashed. I.A.5 filed by the 2nd defendant under Section 151 of the Code of Civil Procedure is allowed subject to payment of costs of Rs.20,000/- payable by defendant No.2 to the Advocates Welfare Fund within two weeks from the date of receipt of a copy of this order. On production of receipt for having deposited the costs, the trial Court shall take on record the written statement already filed along with the application and permit the defendants to contest the suit on merits in accordance with law. Ordered accordingly.