Calcutta High Court (Appellete Side)
Sri Nemai Chandra Sadhukhan vs Sri Badal Das & Ors on 6 January, 2020
Author: Shampa Sarkar
Bench: Shampa Sarkar
1 S/L 2 06.01.2020Ct. No. 19
GB C.O. 2817 of 2019 Sri Nemai Chandra Sadhukhan Vs. Sri Badal Das & Ors.
Mr. Joy Chakraborty.
... for the Petitioner.
Mr. Tanmoy Mukherjee, Mr. Anirban Majhi.
... for Opposite Party Nos.1, 3 & 4.
This is an application filed by the defendant no.1 in Title Suit No.1579 of 2016 pending before the learned Civil Judge (Junior Division), 1st Court at Howrah.
The defendant nos.1 and 2 both appeared in the suit and contested the same by filing separate vakalatnama on January 19, 2017. Both the defendants prayed for time to file written objection to the application for injunction as also their respective written statements. Time was allowed by the learned Court below by order dated February 14, 2017 and April 25, 2017 was fixed for filing the written statement. On April 25, 2017 the date for filing the written statement was extended to May 22, 2017. On May 22, 2017 due to resolution of the local bar, the case was adjourned and June 21, 2017 was fixed for filing written statement. On June 21, 2017 the defendant no.2 filed the written statement but the defendant no.1, that is, the petitioner did not file the written statement. The petitioner filed hazira and all subsequent dates the petitioner was present in Court and contested the proceeding. On April 18, 2017 the petitioner filed two applications, one for vacating of the ex parte proceeding and also a show cause accompanied with a written statement and the counter-claim.
It was submitted by the learned advocate for the petitioner before the Court below that although the petitioner had missed to file the written statement, he had all along participated in the proceeding and also examined P.W.1. In my opinion, the application for vacating the order fixing the suit for ex parte hearing was misconceived, as the learned Court below had not fixed the suit for ex parte hearing. While taking up the show cause filed by the petitioner explaining why the written statement was not filed, the learned Court below did not accept the explanation that the written statement was not filed due to inadvertence and unintentional mistake. The written statement and the counter-claim 2 were not accepted by the learned Court below and the show cause was rejected. Subsequent date was fixed for cross-examination of P.W.1.
Aggrieved by the order dated April 18, 2019, by which the learned Court below rejected the show cause filed by the petitioner and refused to accept the written statement and counter-claim, this revisional application has been filed.
It is submitted on behalf of the petitioner that the mistake was a genuine slip on the part of the learned advocate because the petitioner was diligent and he had instructed his learned advocate to attend the Court, hazira was filed on his behalf and even he was allowed to cross-examine P.W.1. Suddenly when this mistake was discovered, the written statement with the counter claim was filed.
Mr. Mukherjee, learned advocate appearing on behalf of the opposite parties submits the conduct of the petitioner would indicate that despite several opportunities, the petitioner did not file the written statement, that at the stage of cross-examination of P.W.1 if the petitioner's written statement along with counter-claim is accepted, in that case the proceeding will have to be initiated de novo, for which the plaintiff will suffer irreparable loss and injury.
I accept the contention of Mr. Mukherjee that the delay will cause loss to the plaintiff but the records reveal that the petitioner was contesting the suit and had also instructed his learned advocate to take steps as required, to conduct the case properly on his behalf. The fact that, hazira was filed on behalf of the petitioner and his learned advocate appeared in Court and also cross-examined the P.W.1, indicates that the non- filing of the written statement could be a mistake or an act of carelessness, for which the litigant should not suffer. Moreover, in an adversarial form of litigation, justice is best delivered when the parties are allowed to contest the proceeding fairly and in accordance with law. However, the Court cannot be unmindful of the fact that the plaintiff will be at a disadvantage if the clock is put back from where it started.
Thus, I am of the opinion that justice would be sub-served if the written statement is accepted but the plaintiff is adequately compensated for the loss of time.
In the decision of Salem Advocate Bar Association, T.N. vs. Union of India, reported in (2005) 6 SCC 344, the Hon'ble Apex Court held as follows:-
"20. The use of the word "shall" in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use 3 of the word "shall" is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice."
In the decision of Sandeep Thapar vs. SME Technologies Private Limited, reported in (2014) 2 SCC 302, the Hon'ble Apex Court held as follows:-
"6. The learned counsel for the appellant has submitted that undoubtedly the limit under Order 8 Rule 1 has to be observed, but in exceptional circumstances in order to ensure that the injustice is not done, the court will have the power to permit the defendant to file the written statement.
7. We have considered the submission made by the learned counsel. In our opinion, the submission made by the learned counsel is well founded in view of the observations made by this Court in Kailash v. Nanhku [(2005) 4 SCC 480] , wherein this Court has observed as follows: (SCC pp. 499-500, para 46) "46. We sum up and briefly state our conclusions as under:
(i)-(iii)***
(iv) The purpose of providing the time schedule for filing the written statement under Order 8 Rule 1 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 8 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 8 Rule 1 CPC is not completely taken away.
(v) Though Order 8 Rule 1 CPC is a part of procedural law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded 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 the asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the court on its being satisfied. Extension of time may be allowed if it is needed to be given for 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."
8. We are satisfied that in the circumstances of this case, the High Court ought to have permitted the appellant to file written statement, beyond the period prescribed in Order 8 Rule 1 CPC, given the facts and circumstances of this case."
Under such circumstances, the order dated April 18, 2019 is set aside. The learned Civil Judge (Junior Division), 1st Court at Howrah is directed to accept the written statement of the petitioner and proceed with the matter in accordance with law. Such 4 acceptance will be subjected to payment of Rs.25,000/- (twenty five thousand) as cost to either the plaintiff or the learned advocate appearing on behalf of the plaintiff in the learned Court below. Receipt showing such payment will be filed in the learned Court below. The Court upon being satisfied that the cost has been paid will accept the written statement. Such cost should be paid within ten days from date.
It is made clear that this order will be complied with by the learned Court below but until and unless the C.O.3534 of 2019 is disposed of, proceedings will remain stayed except insofar as it relates to the acceptance of the written statement of the petitioner upon payment of the costs as indicated hereinabove.
This revisional application is, thus, disposed of.
There will be, however, no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Shampa Sarkar, J.)