Madhya Pradesh High Court
Smt. Baikunthi vs Horilal on 19 September, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 19th OF SEPTEMBER, 2022
WRIT PETITION NO. 5225 OF 2017
Between:-
SMT. BAIKUNTHI W/O SHRI
SHIVNARAYAN, AGED 61 YEARS,
CASTE - RAWAT, OCCUPATION
AGRICULTURIST, R/O VILLAGE
KHOH, TEHSIL SABALGARH,
DISTRICT MORENA (MADHYA
PRADESH)
........PETITIONER
(BY SHRI GAURAV MISHRA - ADVOCATE)
AND
1. HORILAL S/O TUNDA, AGE 80
YEARS
2. PATIRAM S/O HORILAL, AGE 55
YEARS
3. BARELAL S/O HORILAL, AGE 52
YEARS
4. KHEMRAJ S/O HORILAL, AGE 48
YEARS
5. MAKHAN S/O HORILAL, AGE 45
6. HUKAM SINGH S/O HORILAL,
AGE 38
7. BRAJESH S/O HORILAL, AGE 35
2
YEARS
8. KALIYAN S/O PATIRAM, AGE 28
YEARS,
ALL R/O VILLAGE KHOH, TEHSIL
SABALGARH, DISTRICT MORENA
(MADHYA PRADESH)
9. STATE OF MADHYA PRADESH
THROUGH COLLECTOR,
MORENA, DISTRICT MORENA
(MADHYA PRADESH)
........RESPONDENTS
(SHRI VILAS TIKHE - ADVOCATE FOR THE RESPONDENT
NO. 8)
----------------------------------------------------------------------------------------
This petition coming on for hearing this day, the Court passed the
following:
ORDER
This petition under Article 226 of the Constitution of India has been filed seeking following relief:-
(i) That, this Hon'ble Court may kindly be pleased to quash the impugned order dated 14.07.2017 (Annexure P-1) and to allow the petitioner/plaintiff's application under Section 151 CPC and the reply to the counter claim be taken on record in the interest of justice.
(ii) Any other suitable writ order or direction for doing justice in the matter may kindly be issued. Cost of the petition may kindly be awarded.
2. It is submitted by the counsel for the petitioner that the petitioner has filed a suit for declaration of title, possession as well as mesne profit. The defendants filed their written statement along with their counter claim. The petitioner was repeatedly seeking adjournment for filing 3 written statement to the counter claim and, accordingly, by order dated 04.05.2017, last opportunity was granted to file counter claim, but since there was a marriage in the family of the petitioner, therefore, she could not file counter claim on 04.05.2007 and, accordingly, her right to file the written statement to the counter claim was closed.
3. On the very next day, an application was filed by the petitioner for taking written statement to the counter claim on record. It was prayed that although right of the petitioner to file written statement to the counter claim has already been closed, but since the written statement to the counter claim is being filed with a delay of one day, therefore, the same may be taken on record and in case, if the delay is not condoned, then the petitioner would suffer irreparable loss. The Trial Court by the impugned order dated 14.07.2017 rejected the application filed by the petitioner under Section 151 of CPC on the ground that right to file written statement to the counter claim has already been closed and, therefore, no further opportunity can be granted.
4. Challenging the order passed by the Court below, it is submitted by the counsel for the petitioner that provisions of Order 8 Rule 1 of CPC are not mandatory in nature and are directory in nature and prayer for extension of time can always be made although by way of an exception and to buttress his contention, counsel for the petitioner has relied upon the judgment passed by the Supreme Court in the case of Bismilla Bee Vs. Arjuman Aara and others reported in 2014 (3) MPLJ 593, Bharat Kalra Vs. Raj Kishan Chabra decided on 09.05.2022 in Civil Appeal No.3788/2022 and judgment passed by this Court in the case of Vimla Devi Garg Vs. Ishwarlal Agarwal and others decided on 18.07.2018 in 4 W.P. No.4031/2017. It is submitted that cost may be imposed to the petitioner to compensate the defendants.
5. Per contra, the petition is vehemently opposed by the counsel for the respondents. It is submitted that the petitioner has not challenged the order dated 04.05.2017, by which her right to file written statement to the counter claim was closed and unless and until the said order is set aside, written statement cannot be taken on record.
6. Heard the learned counsel for the parties.
7. It is true that on 04.05.2017, right of the petitioner to file written statement to the counter claim was closed and on the very next day, written statement to counter claim was filed along with an application under Section 151 of CPC with a prayer for extension of time to file the written statement. Once right was already closed, then there is no question of extension of time.
8. Now the only question for consideration is as to whether the application filed by the petitioner under Section 151 of CPC for extension of time can also be considered as an application for review of order dated 04.05.2017 or not ?
9. Once the right of the petitioner was already closed to file written statement to the counter claim, then she had two options, i.e., either to challenge that order or to make a prayer for recall / review of that order by explaining the delay in not filing the written statement. From the record, it is clear that on the very next day, the petitioner filed an application under Section 151 of CPC along with the written statement to the counter claim. In the application, the petitioner had also explained the delay for not filing the counter claim within time. It was mentioned that 5 the petitioner is a rustic villager and she was not informed by her counsel that she has to file written statement to the counter claim latest by 04.05.2017. The marriage of son of elder brother-in-law (Jeth) was fixed for 06.05.2017 and, therefore, the petitioner was busy in the said function and, thus, she could not file the written statement on 04.05.2017. It was also mentioned in the application that accordingly, the Trial Court has closed the right of the petitioner to file written statement to the counter claim and it was prayed that the delay in filing the written statement of one day may be condoned and since the dispute in question is with regard to immovable property and in case, if the delay is not condoned, then the petitioner would suffer irreparable loss. Thus, it was prayed that the delay in filing the written statement may be condoned and written statement to the counter claim may be taken on record, although the said application was not happily worded and had not sought recall of order dated 04.05.2017.
10. It is well established principle of law that the Court should not adopt a hyper-technical view while dealing with the applications. The application filed under Section 151 of CPC by petitioner for taking written statement to counter claim on record contains all the materiel ingredients, which were necessary for recall of order dated 04.05.2017. Thus, the Trial Court should not have rejected the application only on the ground that right of the petitioner has already been closed and should have also considered the said application in the light that whether the said application discloses sufficient reasons for not filing the written statement or not and whether the order dated 04.05.2017 can be recalled or not ?
611. The Supreme Court in the case of Bismilla Bee (supra) has held as under:-
"11. The core issue is whether reasons assigned by the Court below in permitting the defendants No. 1 to 5 to file written statement is in accordance with law? In the opinion of this court, this point is no more res integra. In Kailash (supra) Apex Court opined as under :-
"(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."
(Emphasis supplied)
12. The Apex Court in no uncertain terms made it clear that although Order 8 Rule 1 C.P.C is part of procedural law and directory in nature, the permission to file written statement cannot be granted as a matter of routine and merely upon asking. The same view is taken by the Apex Court in 2005 (6) SCC 344 ( Salem Advocate Bar 7 Association, T.N. Vs. Union of India). The Apex court opined that the provision of Order 8 Rule 1 providing for 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.
***
14. In (2007) 14 SCC 431 ( Aditya Hotels (P) Ltd.
Vs. Bombay Swadeshi Stores) the Apex Court opined that the extension of time can be granted by way of exception and for reasons to be recorded in writing. It is important to note that Apex Court opined that in no case the defendants be permitted to seek extension of time when there is laxity or gross negligence on the part of the defendant or his counsel. In the present case there is laxity or gross negligence on the part of defendants No. 1 to 5 or his counsel. Judgment of Kailash (supra) is again considered in 2014(2) SCC 302 ( Sandeep Thapar Vs. SME Technologies (P) Ltd.). In the opinion of this Court, the reasons assigned in Annexure P/7 cannot be treated as exceptional or justifiable reasons. The finding of the court below reproduced in para 10 above shows that trial court has found that there is laxity on the part of defendants No. 1 to 5. No exceptional or special reasons are recorded by the court below while granting opportunity to file written statements. This runs contrary to settled legal position. On the basis of reasons assigned, permission cannot be granted. The impugned order shows that Court has mechanically granted the permission much after 90 days.
15. Although Shri A.V. Bhardwaj stated that the procedural law is handmade of justice and lenient view need to be taken, it is suffice to say that this aspect is dealt with in Kailash (supra) by Supreme Court ( para 28 to 31). After 8 considering those judgments, the Apex Court opined that the time to file reply cannot be granted as a matter of routine or merely on asking. This view is constantly followed in other judgments mentioned above."
12. The Supreme Court in the case of R.N. Jadi & Brothers and others v. Subhashchandra reported in (2007) 6 SCC 420 has held as under:-
15. A dispensation that makes Order 8 Rule 1 directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasise that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order 8 Rule 1 must be adhered to and that only in rare and exceptional cases, will the breach thereof will be condoned. Such an approach by courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in courts. The lament of Lord Denning in Allen v. Sir Alfred McAlpine & Sons [(1968) 2 QB 229 : (1968) 2 WLR 366 : (1968) 1 All ER 543 (CA)] that law's delays have been intolerable and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times?
13. Since the petitioner is the plaintiff and there was no good reason for the petitioner to delay her own suit by not filing the written statement within a stipulated period. There was nothing on record to doubt the 9 stand of the petitioner that she was not informed by her counsel that last date for filing written statement to counter claim is 04.05.2017 and there is nothing on record to suggest that the ground of marriage of son of her elder brother-in-law (Jeth) as raised by the petitioner was false, therefore, this Court is of the considered opinion that the order passed by the Trial Court, by which it has refused to take the written statement to counter claim on record, cannot be given a stamp of judicial approval and, accordingly, the same is set aside. Written statement to the counter claim is taken on record. The Trial Court is directed to proceed further in accordance with law.
14. Since the petitioner had failed to file the written statement of the counter claim within the stipulated period, therefore, the application filed under Section 151 of CPC is allowed on payment of cost of Rs.15,000/- to the defendant.
15. The cost shall be paid before the next date of hearing and shall be a condition precedent for taking the rejoinder on record. It is made clear that in case, if the cost is not paid by the next date of listing before the Trial Court, then this order shall automatically come to an end.
16. The parties are directed to appear before the Trial Court on 27.10.2022.
17. With aforesaid observations, the petition is allowed.
(G.S. AHLUWALIA) JUDGE Abhi Digitally signed by ABHISHEK CHATURVEDI Date: 2022.09.22 17:38:26 +05'30'