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Rajeshwari v/s Sunil & Others


Company & Directors' Information:- SUNIL & CO PVT LTD [Active] CIN = U32109WB1984PTC037810

    Writ Petition No. 109537 of 2019 (GM-CPC)

    Decided On, 03 July 2019

    At, High Court of Karnataka Circuit Bench At Dharwad

    By, THE HONOURABLE MR. JUSTICE S.G. PANDIT

    For the Petitioner: S.S. Yadrami, B.G. Nirmala & S.H. Rakesh Advocates. For the Respondents: ----



Judgment Text


1. The petitioner is before this Court assailing the order dated 13.03.2019 on I.A.No.23 in O.S.No.72/2011 on the file of the Additional Senior Civil Judge, Gadag.

2. The petitioner is the plaintiff and the respondents are defendants in O.S.No.72/2011 filed for partition and separate possession. Defendant Nos.15 and 17 who are purchasers filed I.A.No.23 dated 25.02.2019 under Section 151 of CPC seeking permission to file written statement. When the said application was filed, the suit was at the stage of evidence of the plaintiff. In the affidavit accompanying the application, defendant Nos.15 and 17 stated that, they appeared before the Court on service of summons, due to ill-health, they could not properly appear before the Court. It is also stated that they provided necessary documents and information to prepare written statement, but the Counsel had not filed the written statement. After commencement of evidence, when they approached the Counsel, it came to their knowledge that the written statement is not filed. Hence, they sought permission of the Court to file written statement. The plaintiff filed objection to the application contending that there is inordinate delay which is not explained properly. There is no reason whatsoever to condone the delay in filing the written statement. It is stated that, after commencement of trial, the defendants could not have filed the written statement. The trial Court considering the contentions raised by the parties, by order dated 13.03.2019 allowed I.A.No.23 on costs and permitted defendant Nos.15 and 17 to file the written statement. Aggrieved by the same, the petitioner-plaintiff is before this Court in this writ petition.

3. Heard the learned Counsel for the petitioner and perused the writ papers.

4. The learned Counsel for the petitioner strenuously contended that the trial Court committed an error in permitting defendant Nos.15 and 17 to file the written statement at belated stage. It is his contention that the suit is of the year 2011 and defendant Nos.15 and 17 had appeared before the Court immediately after service of summons, but they had slept over without filling the written statement. When the matter stood at the stage of evidence, they come forward to file the written statement only to delay the proceedings. There is delay of more than 2760 days in filing the written statement and there is no reason whatsoever to permit defendant Nos.15 and 17 to file the written statement and he prays for setting aside the order passed by the trial Court.

5. On hearing the learned Counsel for the petitioner and on perusal of the impugned order, I am of the view that the order would not suffer from any erroneousness or perversity. The trial Court taking note of the stage of the suit and also considering the reasons assigned by defendant Nos.15 and 17 has allowed the application and permitted defendant Nos.15 and 17 to file the written statement. Order 8, Rule 1 of CPC permits filing of written statement, within thirty days from the date of service of summons and thereafter, where the defendant fails to file written statement within the said period of thirty days, he shall be allowed to file the same on such other day, for reasons to be recorded in writing, but not later than ninety days from the date of service of summons. The said rule is not mandatory and it is directory. The provision would not specifically take away the power of the Court to take the written statement on record though filed beyond the time provided. It is only a procedural rule. The intention of the rule is curb the unscrupulous litigants from adopting dilatory tactics. The Court could permit the defendants to file written statement by recording reasons. In the present case, the defendants have stated by way of an affidavit that, defendant No.17 due to ill-health could not properly appear before the Court. Further, it is stated that, they had furnished necessary documents and information to prepare written statement, but the Counsel had not filed written statement. When the evidence commenced and when they approached the Counsel, it came to their knowledge that the Counsel had not filed the written statement. Thereafter, they had taken steps to file the written statement. The mistake of the Counsel should not deprive defendant Nos.15 and 17 from filing written statement.

6. The Hon’ble Apex Court dealing with Order 8, Rule 1 of CPC in the case of Kailash Vs. Nanhku and Others (2005) 4 Supreme Court Cases 480 at paras 27, 33, 41 and 42 held as follows:

“27. Three things are clear. Firstly, a careful reading of the language in which Order VIII, Rule 1 has been drafted, shows that it casts an obligation on the defendant 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 a way of the power of the Court to take the written statement on record though filed beyond the time as provided for. Secondly, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not apart of the substantive law. Thirdly, the object behind substituting Order VIII, Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagr in of the plaintiffs and petitioners approaching the Court for quick relief and also to 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. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried.

33. As stated earlier, Order VIII, Rule 1 is a provision contained in the CPC and hence belongs to the domain of procedural law. Another feature noticeable in the language of Order VIII, Rule 1 is that although it appoints a time with in which the written statement has to be presented and also restricts the power of the Court by employing language couched in a negative way that the extension of time appointed for filing the written statement was not to be later than 90 days from the date of service of summons yet it does not in itself provide for penal consequences to follow if the time schedule, as laid down, is not observed. From these two features certain consequences follow.

41. Considering the object and purposed behind enacting Rule 1 of Order VIII in the present form and the context in which the provision is placed, we are of the opinion that the provision has to be construed as directory and not mandatory. In exceptional situations, the court may extend the time for filing the written stamen though the period of 30 days and 90 days, referred to in the provision, has expired. However, we may not be misunderstood as nullifying the entire force and impact the entire life and Vigour of the provision. The delaying tactics adopted by the defendants in law Courts are now proverbial as they do stand to gain by delay.

This is more so in election disputes because by delaying the trial of election petition, the successful candidates may succeed in enjoying the substantial part, if not in its entirely, the term for which he was elected even though he may loose the battle at the end. Therefore, the Judge trying the case must handle the prayer for adjournment with firmness. The defendant seeking extension of time beyond the limits laid down by the provision may not ordinarily be shown indulgence.

42. Ordinarily, the time schedule prescribed by Order VIII, Rule 1 has to be honoured. The defendant should be Vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the Court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for asking more so, when the period of 90 days has expired. The extension can be only by way if an exception and for reasons assigned by the defendant and also recorded in writing by the Court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order VIII, Rule 1 of the Code was being allowed to be made because the circumstance were exceptional,

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occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave in justice would be occasioned if the time was not extended”. From the above decision, it is clear that time frame for filing written statement is to expedite the proceeding and not to cause injustice to the other party. The Courts endeavour should always be towards the cause of substantial justice. 7. Moreover, the petitioner is not able to submit with regard to prejudice caused to him by allowing filing of written statement. Under Article 227 of the Constitution of India, the person who approaches the Court has to demonstrate the prejudice that would be caused by virtue of impugned order. I am of the view that the petitioner has not made out any ground to interfere with the order permitting defendant Nos.15 and 17 to file the written statement. Accordingly, the writ petition is rejected.
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