Calcutta High Court
Jayshree Tea And Industries Ltd. vs General Magnets Ltd. on 20 September, 2007
Equivalent citations: 2008(1)CHN629
Author: S.S. Nijjar
Bench: S.S. Nijjar, Pinaki Chandra Ghose
JUDGMENT S.S. Nijjar, C.J.
1. We have heard the Counsel for the parties length.
2. In this matter, the suit filed on 16lh of January, 2001 by the respondent/ plaintiff with the following prayers:
(a) Decree for Rs. 38,47,824/- on account of rent for the months of April, 2000 to December, 2003 claimed in paragraph 17 hereof together with interest @ 8.33% per annum.
(b) Declaration that the defendant is liable to pay rent @ Rs. 6/- per sq.ft. per month from April, 2000 onwards for a period of 10 years from April, 2000 and direction upon the defendant to make payments accordingly on account of rent for the go down described in Schedule "A" hereto,
(c) Alternatively decree for adjudication, determination and settlement of monthly rent in respect of the subject go down more fully stated in Schedule "A" hereto and decree for such sum as may be determined by this Hon'ble Court for the period of 1"' April, 2000 onwards along with interest at the rate of 8.33% per annum from the dates such rent fall due;
(d) Mandatory injunction directing the defendant to pay the rent at the rate fixed by this Hon'ble Court for the period 181 April, 2000 onwards along with interest at the rate of 8.33% per annum from the dates such rent fall due;
(e) Interim interest and interest on judgment at the rate of 8,33% per annum;
(f) Receiver
(g) Injunction;
(h) Costs ;
(i) Such further or other reliefs.
3. Immediately after filing of the suit, the plaintiff has filed an application for appointment of a Commissioner with a prayer to give direction to the Commissioner for fixation of the rent which would be payable by the defendant in the year 2001 itself. By an order dated 18th of January, 2001 the Trial Court granted the prayer for appointment of a Commissioner with certain directions.
4. The defendant entered appearance on 15th of March, 2001. No written statement, however, was filed by the defendant, though interlocutory applications filed in the suit were being contested regularly by the appellant/ defendant. In the meantime, 90 days period being the maximum period permissible for filing the written statement expired.
5. The Commissioner in his report also opined that the rent of mesne profit for the godowns would be variable between Rs. 5/- and Rs. 6/- per square foot. Therefore, the Commissioner in its report has recommended fixation of rent at Rs. 6/- per square foot.
6. The report was challenged by the appellant/defendant by filing two applications being G.A. No. 2517 of 2003 and G.A. No. 2518 of 2003 with a prayer for setting aside the report of the Commissioner. The respondent/plaintiff also filed G. A. No. 3329 of 2003 seeking a direction on the appellant/defendant to pay rent from 1st April, 2000 at the rate determined by the Commissioner. Ultimately the Trial Judge, taking up suits, by an order dated 13th of April, 2006directed payment of rent at the rate of Rs. 3.50/- per square foot for both the godowns. This order was challenged by the appellant/defendant by filing an appeal being APOT No. 298 of 2006 which was disposed of by the judgment and order dated 20th of July, 2006. Against the aforesaid order, the respondent/plaintiff filed Special Leave Petition in the Supreme Court being SLP (Civil) No. 17315 of 2006 which has been dismissed on 3rd November, 2006 with the following order:
Heard counsel for the parties.
The Special leave petition is dismissed.
Let hearing of the suit, being C. Section No. 17 of 2001 be expedited.
7. After dismissal of the Special Leave Petition/the respondent/plaintiff wrote a letter to the Advocate-on-Record of the appellant/defendant on 31st of January, 2007seeking information as to whether the written statement has been filed in the suit and in case the written statement has been filed, a copy thereof may be supplied to the respondent/plaintiff. No reply was received by the respondent/plaintiff. Thereafter, another letter was written by the respondent/ plaintiff on 8th February, 2007 as a reminder to the letter dated 318t January, 2007. It was also noted in the said letter that if the respondent/plaintiff did not receive any intimation from the appellant/defendant within seven days from receipt of the letter, it would be presumed that the defendant did not wish to file the written statement in the above suit and further steps would be taken for hearing the above suit without the written statement. There was no reply to the aforesaid reminder. The suit appeared in the Cause List for 1.08.2007, at Serial No. 18, as an undefended suit. Consequently, the matter was put up for hearing before the Trial Court on 2"d of August, 2007 for hearing.
8. On that date one witness of the plaintiff was examined-in-chief in part. At that stage of hearing, the Counsel for the appellant/defendant appeared and prayed for taking out an application for extension of time to file the written statement which had been numbered as T. No. 420 of 2007. With the consent of the parties, the application was taken up for hearing by the learned Trial Judge.
9. After hearing the Counsel for the parties, the learned Trial Judge has observed as follows:
...
I have gone through the contents of the said application. On perusal of the said application, it is clear that the defendant came up with the explanation for delay since December, 2006. There is no whisper in the application regarding the delay since 15.3.2001 till December, 2006.
It is worth-mentioning that the case in between Aditya Hotel Pvt. Ltd. v. Bombay Swadesh Stores was referred by Mr. Mitra in support of his contention. In that case the Trial Judge allowed the written statement to be accepted though the same was filed after the stipulated period was over. The Hon'ble High Court dismissed the writ application under Article 227 summarily and against that order the plaintiff went before the Hon'ble Supreme Court.
The Supreme Court by the order set aside the order of the Trial Court and the High Court on the ground that the reason to justify the acceptance of the written statement after the expiry of time fixed was not mentioned.
I have already stated that in this case no explanation has been given regarding delay since 15.3.2001 to December, 2006.
In the absence of the same this Court under no circumstances can accept the reasons for condonation of delay and accordingly I am of the clear opinion that the instant application is devoid of any merit and the question of extension of time to file the written statement cannot be allowed. As such the instant application is dismissed on contest.
However, there will be no order as to costs.
The plaintiff is to continue with the examination of the witness.
After this order is passed Mr. Deb, learned Senior Counsel for the defendant, submits that he will prefer an appeal against this order and accordingly he prays for seven days' time.
Considering the fact that the prayer has been made for preferring appeal against this order, let operation of the order be stayed for seven days.
Let this case be fixed on 10th August, 2007 under the hearing 'Undefended Suit'.
The application is disposed of accordingly.
All parties to act on a xerox signed copy of this dictated order upon usual undertaking.
10. This order has been challenged in the present appeal. We have heard very lengthy arguments addressed by the learned Counsel for the parties. Appearing for the appellants, Mr. Jayanta Mitra learned Senior Advocate, submits that the learned Trial Judge has wrongly held that there is not a whisper about the delay between 15th March, 2001 and December, 2006. The delay, according to the learned Senior Counsel, has been sufficiently explained, in that, the parties were prosecuting the interlocutory application in earnest. The matter was agitated right up to the Supreme Court. Therefore, there was no occasion to file the written statement any earlier. The Supreme Court decided the SLP on 3rd November, 2006. The suit, appeared on the Cause List on 1st August, 2007. On the very first day of the hearing of the suit the appellants had made a request to the Hon'ble Trial Judge for leave to file the written statement. Learned Senior Counsel submits that the Trial Judge has taken an unduly harsh and a hyper-technical view of the law with regard to the condonation of delay as provided under Section 5 of the Limitation Act. Neither of the parties had taken any steps in aid of the hearing of the present suit. He further submits that the appellant cannot be held responsible for the negligence of the Advocates in not advising the appellant correctly. According to the learned Senior Counsel the learned Trial Judge has wrongly relied on the judgment of the Supreme Court in the case of Aditya Hotel Put. Ltd. (supra) as the provisions of the Civil Procedure Code would not be applicable to the present civil suit, which would be governed by the provisions contained in the Original Side Rules of this Court. In support of his submission, the learned Counsel has relied on a Division Bench judgment of this Court in the case of Howrah Motor (C) Ltd. v. Excide Industries Ltd. 2005 (3) CLT 573 and a judgment of the Supreme Court in Iridium India Telecom Ltd. v. Motorola Inc. . It is further submitted that unlike Order 8 Rule 1 of CPC no maximum period has been prescribed for filing of the written statement under the Original Side Rules. The written statement can be filed at any stage with the leave of the Court in view of the provisions contained in Chapter IX Rules 2 and 3. In support of this the learned Counsel has relied on the judgments of the Supreme Court in the case Om Prakash v. Lalchand and Anr. and Salem Advocate Bar Association Tamil Nadu v. Union of India . On the other hand, Mr. Chatterjee, learned Senior Advocate submits that the judgment of the learned Single Judge does not call for any interference. The discretion exercised by the Hon'ble Trial Court cannot be said to have been exercised arbitrarily. In fact, the judgment of the learned Single Judge is strictly within the parameters of Section 5 of the Limitation Act. According to the learned Counsel, the appellant cannot be permitted to say that the delay ought to be condoned as he has not been correctly advised by the Advocates. The appellant was regularly appearing in all the interlocutory matters. Pendency of the interlocutory matters was no impediment in filing the written statement.
11. We have considered the submissions made by the learned Counsel for the parties.
12. Undoubtedly, Order 7 Rule 1 CPC provides that in case the written statement is not filed within the period of 30 days, the time may be extended by the Court for reasons to be recorded in writing but which shall not be later than 90 days from the date of service of summons. This provision is not contained in Chapter IX Rules 2 and 3 of the Original Side Rules. The rules only provide that where written statement is not filed within the time fixed by the summons or within such further time as may be allowed, the suit shall be transferred to the Peremptory List of undefended suits. Although the period of 90 days is not mentioned in the aforesaid Rule, we-are of the opinion, that it would not be a justification for condonation of delay in not filing the written statement for an indefinite period of time. Even under the Original Side Rules, we are of the opinion the application for condonation of delay in filing the written statement can be rejected in cases where the defendant has not been diligent. We are unable to accept in the facts and circumstances of this case that the appellant was justified in not filing the written statement as his Advocates did not advise him to do so. It is an accepted proposition by both the parties that the interlocutory applications were being pursued with full vigour. Advocates of longstanding experience are not expected to be ignorant of legal provisions with regard to the filing of basic pleadings, such as a written statement, in a civil suit. This view of ours will find support from the judgment of the Supreme Court in the case of Mata Din v. A Narayanan . In that case it has been held as follows:
6. The law is settled that mistake of Counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of Counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was merely advice (devised) to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way.
13. In the present case, we are unable to hold that for a period of six years the Advocates of the appellant simply forgot to file the written statement. The history of the litigation so far is well-indicative of the attitude of the defendant to delay the final outcome of the suit as long as possible. Even after the Supreme Court dismissed the SLP on 3rd of November, 2006, the appellant took no steps to file the written statement. Even the letters written by the plaintiff/respondent did not elicit any response. Even the request for filing the written statement in Court was not made before the examination of the witnesses of the plaintiff commenced. It was only when the proceedings were coming to a close for the day that a request seems to have been made for permission to file the application for condonation of delay. In such circumstances, it would be wholly unjust to accept the proposition that the delay in filing written statement ought to be condoned on the ground that the appellant had not been properly advised by his Advocates. In the case of Lai Devi and Anr. v. Vaneeta Jain and Ors. the delay was condoned as the Advocate of the defendant did not appear before the Court on the day fixed for hearing, nor represented to the Court about their absence. It was observed by the Supreme Court as follows:
5. ...we have also no hesitation in observing that Counsel of the defendant were not careful enough to inform the learned District Judge about their pre-occupation before the High Court which prevented them from being present in his Court when the case was called for hearing. But the passing of an ex parte decree in a case of this nature is too harsh a consequence to be upheld. The defendant cannot be made to suffer an ex parte decree particularly when he was not at fault, having duly instructed his Counsel to appear before the Court of the learned District Judge.
14. These observations clearly show that Supreme Court condoned the delay as the defendant was found to be not at fault. It was also observed that in the particular facts of that case, the consequences which the defendant would be made to suffer by the ex parte decree would be to harsh. In the present case, the facts of the case are not so one sided as to lead to any harsh consequences for the appellant. The plaintiff has only made an application for fixation of the rent on the basis of the agreements which have been allegedly arrived at between the parties in accordance with law. The ratio of law in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India is also of no assistance to the appellant. In paragraph 45 of the judgment it has been held as follows:
45. The amendment made in Section 148 affects the power of the Court to enlarge time that may have been fixed or granted by the Court for the doing of any act prescribed or allowed by the Code. The amendment provides that the period shall not exceed 30 days in total. Before amendment, there was no such restriction of time. Whether the Court has no inherent power to extend the time beyond 30 days is the question. We have no doubt that the upper limit fixed in Section 148 cannot take away the inherent power of the Court to pass orders as may be necessary for the ends of justice or to prevent abuse of process of Court. The rigid operation of the Section would lead to absurdity. Section 151 has, therefore, to be allowed to fully operate. Extension beyond maximum of 30 days thus, can be performed if the act could not be performed within 30 days for the reasons beyond the control of the party. We are not dealing with a case where time for doing an act has been prescribed under the provisions of the Limitation Act which cannot be extended either under Section 148 or Section 151. We are dealing with a case where the time is fixed or granted by the Court for performance of an act prescribed or allowed by the Court.
15. These observations clearly show that the Court would have inherent jurisdiction to extend the time-limit beyond the maximum period prescribed, provided the Act could not be performed within the stipulated time period for the reasons beyond its control of the party. In the present case, it cannot possible be argued by the appellant that he was prevented from filing the written statement by circumstances beyond control. The only justification put forward is that they were too pre-occupied in contesting the interlocutory application to think about filing the written statement. We are unable to accept such an explanation as sufficient cause to condone the delay. Rather we are of the opinion that the learned Trial Judge has correctly relied upon the Judgment of the Supreme Court in Aditya Hotel Put. Ltd (supra). Even if all the provisions of the CPC are not applicable to the present proceedings, the established principles for determining sufficient cause for condonation of delay would clearly applicable.
16. We are also unable to accept the submission that there is sufficient explanation for the delay which ought to have been condoned. It is undoubtedly correct, as pointed out by Mr. Jayanta Mitra, that provisions of Original Side Rules of this Court would govern the proceedings of civil proceedings taken out on the Original Side jurisdiction. This proposition of law is well-established. In the case of Iridium India Telecom Ltd. v. Motorola Inc. (supra) Supreme Court has clearly held as follows:
15. Prior of the establishing of the chartered High Courts by the British Government in 1862, the Civil Courts in the Presidency of Bombay were governed by the Code of Civil Procedure, 1859 (Act 8 of 1859, which received the assent of the Governor General on 22.3.1659). This Act, as its preamble suggests, was "an Act for simplifying the procedure of the Court of Civil Judicature not established by Royal Charter" and was not intended to apply to High Courts established by Royal Charter.
48. Finally, it was argued by Mr. Jethmalani that the Letters Patent, and the rules made there under by the High Court for regulating its procedure on the Original Side, were subordinate legislation and therefore, must give way to the superior legislation, namely the substantive provisions of the Code of Civil Procedure.
There are two difficulties in accepting this argument. In the first place, Section 2(18) CPC defines "rules" to mean "rules and forms contained In the First Schedule or made under Section 122 or Section 125." The conspicuous absence of reference to the rules regulating the procedure to be followed on the Original Side of a chartered High Court makes it clear that those rules are not "rules" as defined in the Code of Civil Procedure 1908. Secondly, it is not possible to accept the contention that the Letters Patent and rules made there under, which are recognised and specifically protected by Section 129, are relegated to a subordinate status, as contended by the learned Counsel. We might usefully refer to the observations of the Constitutional Bench of this Court in P.S. Sathappan v. Andhra Bank Ltd. with reference to Letters Patent, this is what the Constitution Bench said: (SCC p. 709 para 32) 32(148). It was next submitted that Clause 44 of the Letters Patent showed that Letters Patent were subject to amendment and alteration. It was submitted that this showed that a Letters Patent was a subordinate or subservient piece of law. Undoubtedly, Clause 44 permits amendment or alteration of Letters Patent, but then which legislation is not subject to amendment or alteration? CPC is also subject to amendments and alterations. In fact it has been amended on a number of occasions. The only unalterable provisions are the basic structure of our Constitution. Merely because there is a provision for amendment does not mean that, in the absence of an amendment or a contrary provision, the Letters Patent is to be ignored. To submit that a Letters Patent is a subordinate piece of legislation is not to understand the true nature of a Letters Patent. As has been held in Vinita Khanolkar case and Sharda Devi case a Letters Patent is the charter of the High Court. As held in Shah Babulal Khimji case of Letters Patent is the specific law under which a High Court derives its powers. It is not any subordinate piece of legislation. As set out in aforementioned two cases a Letters Patent cannot be excluded by implication. Further it is settled law that between a special law and a general law the special law will always prevail. A Letters Patent is a special law for the High Court concerned. The Civil Procedure Code is a general law applicable to all Courts. It is well-settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail. We see no conflict between the Letters Patent and Section 104 but if there was any conflict between a Letters Patent and the Civil Procedure Code then the provisions of the Letters Patent would always prevail unless there was a specific exclusion. This is also clear from Section 4 of the Civil Procedure Code which provides that nothing in the Code shall limit or affect any special law. As set out in Section 4 CPC only a specific provision to the contrary can exclude the special law. The specific provision would be a provision like Section 100A.
17. Following the aforesaid judgment of the Supreme Court a Division Bench of this Court in the case of The Howrah Motor Company Limited (supra) held as follows:
11. It is well-settled that whenever there is a conflict between a provision in the CPC and High Court Rules of a Chartered High Court, the Rules will prevail in AIR 1954 Cal. 369 Shaw and Co. v. B. Shamaldas and Co. His Lordship P.H. Mukherji, Judge (as His Lordship then was) observed as follows:
I assent to the general proposition that under the Rule making powers of the Chartered High Court regulating the procedures can be made by the High Courts, which are even inconsistent with and different from the Rules laid down in the First Schedule of the CPC and when such Rules are so framed they prevail over the Rules of the First Schedule of the CPC.
12.He also placed reliance on AIR 1999 Cal. Page 29 (Full Bench) Ratanlal Nahata v. Nandita Bose when Court observed as follows:
A Chartered High Court is entitled to make rules to regulate its own procedure in the exercise of its Original Civil Jurisdiction, which need not be consistent with the provisions of the Code, but must be consistent with Letters Patent.
13. He also contended that the point is not settled beyond any controversy by the judgment reported in 2005(2) SCC 145 Iridium India Telecom Ltd. v. Motorola Inc.
14. It appears to us, in that case the question arose whether the Original Side of the Bombay High Court was governed by the Original Side Rules or by the amended provisions of the Order 7 Rule 1 of the CPC. It was decided by the Hon'ble Supreme Court of India that a Rule framed by the High Court under the powers conferred on the Chartered High Court by the Letters Patent being inconsistent with the provisions of CPC would prevail over the CPC. The Supreme Court approved of the decision made by the Full Bench of the Calcutta High Court in Manickchand Durgaprasad v. Patamull Rameswar AIR 1961 Cal. 483.
15. In the said Full Bench decision of the Calcutta High Court, it was held if any Rule framed by the High Court under Clause 37 of the Letters Patent be inconsistent with or confers any additional powers besides what is granted by the CPC, the Rule framed under Clause 37 will prevail over the corresponding provision of the CPC.
39. We have considered the points urged before us and must accept the position that if there is any conflict between the CPC and High Court Rules of a Chartered High Court, the Rules will prevail. We have further found from the CPC and we have considered the Section 129 of CPC and also Order 49 Rule 2 of the CPC and we have found that there cannot be any doubt that the Order 18 Rule 6 cannot play a role when a suit is being before the Original Side of the High Court.
18. In view of the aforesaid, we are of the opinion, that the judgment of the Hon'ble Judge does not suffer from any illegality. In the facts and circumstances of this case, we are of the opinion that no injustice has been done to the appellant. The discretion used by the Trial Court cannot be said to be either arbitrary or not based on sound principle of law. Therefore, we see no reason to interfere with the judgment or appeal.
Accordingly, the appeal is dismissed. Certified copy of this order be made available to the parties, if applied for, upon compliance of usual formalities.
P.C. Ghosh, J.
I agree.