Karnataka High Court
Prasanna Parvathamba ... vs M.S. Radhakrishna Dixit on 17 April, 2003
Equivalent citations: ILR2003KAR3097, AIR 2003 KARNATAKA 345, 2003 AIR - KANT. H. C. R. 1645, (2003) 3 CIVILCOURTC 415, (2003) 4 KANT LJ 479, (2003) 4 ICC 680, (2003) 7 INDLD 218, (2003) 3 KCCR 1993
ORDER VIII RULE 9--Filing of written statement beyond the period prescribed under Order VIII Rule 1--Court has power to accept written statement but within outer limit of 30 days after expiry of 90 days--Such power to be used only in exceptional cases--Court to record reasons in writing--Defendant cannot claim such benefit as a matter of right--Exercise of discretion must be judicial and not capricious keeping with the spirit of amendment. Held: From a perusal of Order VIII Rule 9, it appears that the Court has got power under extraordinary and rare circumstances to require at any time written or additional written statements to be filed in a case within the outer limit of 30 days to be fixed by the Court. (B) CODE OF CIVIL PROCEDURE, 1908 (CENTRAL ACT NO. V OF 1908)--ORDER VIII RULE 9--Application of--Not confined only to set-off or counter claim. Order VIII Rule 10 also makes references to Rules 1 and 9 of Order VIII. When such is the position, obviously Rule 9 is not confined only to set off or counter claim. If that be so, there would not be a reference to Rule 1 and Rule 9 in Rule 10. ORDER Kumar Rajaratnam, J.
1. With the consent of the learned Counsel appearing on both sides, this petition is taken up for final disposal.
2. The only question that arises for consideration in this petition is whether the Court can permit filing of written statement by the defendant beyond the period of 90 days from the date of service of summons.
3. Order VIII Rule 1 of Code of Civil Procedure (hereinafter referred to as Code) reads as follows:-
"1. Written statement- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons."
4. There is a clear mandate under the Code that written statements must be filed within 30 days from the date of service of summons. The proviso to Order VIII Rule 1 indicates that where the defendant fails to file written statement within the said period of 30 days, the Court may allow him to file the same on some other day as may be specified by the Court for the reasons to be recorded in writing but which shall not be later than 90 days from the date of service of summons.
5. What happens if the written statement is not filed within 90 days from the date of service of summons is clearly set out under Order VIII Rule 10. Order VIII Rule 10 reads as under :-
"Procedure when party fails to present written statement called for by Court:
Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up."
If no written statement is filed within 90 days, the Code mandates that the Court shall pronounce judgment against him or make such order as the Court thinks fit.
6. In other words, the Code clearly indicates that if a case is made out in the plaint, the Court will have no alternative except to pronounce judgment. The words in Order VIII Rule 10 are to the effect that the Court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.
7. An amendment was brought to the Code of Civil Procedure reviewing Order VIII Rule 9 by Central Act 22 of 2002. The CPC Amendment Act, 2002 came into force on 1st of July, 2002. By the amendment of Order VIII Rule 9, the following amendment was introduced under the nomenclature of 'subsequent pleadings'.
"9. Subsequent pleadings - No pleading subsequent to the written statement of a defendant other than by way of defence to set off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement or from any of the parties and fix a time of not more than thirty days for presenting the same."
8. From a perusal of Order VIII Rule 9, it appears that the Court has got power under extraordinary and rare circumstances to require at any time written or additional written statements to be filed in a case within the outer limit of 30 days to be fixed by the Court. The question also arises for consideration as to whether Order VIII Rule 9 would relate only to set off and counter claim or would relate to other cases as well.
9. The answer to this question need not detain us for too long. Order VIII Rule 9 consists of two parts viz.,:
(a) A party can file pleadings subsequent to the filing of written statement other than by way of defencse to set off or counter claim except by the leave of the Court and upon such terms as the Court thinks fit.
(b) The Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.
10. Mr. Mahesh R. Uppin, learned Counsel for the petitioner relied on a judgment of the Patna High Court reported in KALI PADO SHARMA vs. SURENDRA NATH MAHATHA & ANOTHER, . In that case, relying on a judgment reported in BINDA PRASAD vs. UNITED BANK OF INDIA, , the Patna High Court took the view that Order VIII Rule 9 invests the Court with the widest possible discretion and enables it to accept a written statement filed subsequently even after the settlement of issue, upon such terms as the Court thinks fit.
11. Reliance was also placed on a judgment of this Court by Mr.Uppin. This Court in S. SRIDEVI vs. S.VIJAY, 1989 (1) K.L.J 100 has held that under Rule 1 and 9 of Order VIII of the Code, there is ample scope for the Court to apply its mind in each case to permit or not to permit additional written statement. It should not be denied for sake of mere denial. It should be allowed if there is no prejudice likely to be caused to the plaintiff or any of the parties. In that view of the matter it was only a formal application of a legal right already available to the I defendant and the Court should have allowed the amendment having regard to the wide powers and discretion vested in the trial Court under Order 8 Rule 1,9 of the Code. (See 1989 K.L.J (1) page 100)
12. Although the judgments cited at the Bar by Mr. Uppin are with respect to the old Code, these judgments will apply to the new Code as well but however for compelling reasons to be recorded in writing. Order VIII Rule 9 of the old Code reads as follows:-
"9. Subsequent pleadings - No pleading subsequent to the written statement of a defendant other than by way of defence to a set off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same."
The amended Code has been extracted in the earlier part of the judgment.
13. The only difference between the old Code and the new Code as far as Order VIII Rule 9 is concerned is that no time limit is fixed in the old code and discretion is given to the Court to fix the time for presenting the written statement. In the amended code, the Court may permit filing of written statement or additional written statement from any of the parties, but the Court must fix an outer limit of not more than 30 days for presenting the same. In other words, once the time is fixed by the Court and the written statement is not filed within that time, the defendant loses his right to file his written statement. This appears to be the last reservoir of power given to the Court for permitting the defendant to file his written statement. I am of the view that this power under Order VIII Rule 9 should be used only in exceptional cases and for reasons recorded in writing and cannot be exercised by a defendant as a matter of right. Such exercise of discretion must be judicial and not capricious and such right must be in keeping with the spirit of the amended Code.
14. Order VIII Rule 10 also makes reference to Rules 1 and 9 of Order VIII. When such is the position, obviously, Rule 9 is not confined only to set off or counter claim. If that be so, there would not be a reference to Rule 1 and Rule 9 in Rule 10.
15. A harmonious reading of Rules 1,9 and 10 of Order VIII would indicate that Rule 9 in extraordinary cases gives the Court judicial discretion to permit the defendant to file a written statement within the outer span of 30 days from the date of passing the order for reasons recorded in writing.
16. Coming to the facts of the case, it was submitted by Mr. Uppin that the respondent filed O.S. No. 79/01 in the Court of Civil Judge (Sr.Dn.), Maddur seeking cancellation of the registration of the Trust Deed dated 15.11.95 numbered as 15/95-96 registered in the Office of the Sub-Registrar, Maddur Taluk, Mandya District and to declare that the formation of the Trust by the defendant is not binding on the plaintiff. In that suit, the petitioner appeared through an advocate.
17. Subsequently, the respondent plaintiff filed WP No.4198/02 in respect of the very same subject matter. Further, a public interest litigation was also filed in this Court numbered as WP 46883- 904/01. WP Nos. 46883-904/01 were dismissed on 13..01.03 and WP 4198/02 was disposed of on 4.3.03.
18. In the meanwhile, O.S. No.79/01 was posted before the Trial Court on 22.10.2002 for filing written statement. On that day, the Trial Court passed an order as 'written statement not filed' and the matter was posted for plaintiff's evidence. Mr.Uppin submitted that the petitioner defendant could not file the written statement on the said day for various reasons. All the records pertaining to O.S. No.79/ 01 were in the custody of the petitioner's counsel at Bangalore. Some of the original relevant documents were misplaced. The suit was instituted before the Civil Procedure Code (Amendment) Act came into force. The petitioner defendant was under the bona fide belief that the amendment Act will have prospective effect. The petitioner defendant used to appear regularly in the Writ Petitions as there was an interim order in one of the petitions.
19. Counsel further submitted that on 7.1.2003 the petitioner defendant filed written statement along with I.A.I under Order VIII Rule 1 of the Code seeking permission to file the same. The learned Civil Judge without considering the provisions of Order VIII Rule 9 of the Code passed the impugned order dated 7.1.03 rejecting the I.A. filed under Section. 151 of the Code. In these circumstances, the petitioner defendant has come up in this revision petition.
20. Along with I.A.I, the petitioner defendant has already filed his written statement. No useful purpose will be served in the facts and circumstances of this case, if the defendant is denied the right to file his written statement. The petitioner has given the compelling reasons for not being able to file his written statement within time. It will be in the interest of both parties that the written statement is accepted by the Court since the issue has not been framed as yet.
21. Accordingly, the revision petition is allowed. The petitioner shall deposit Rs. 500/- in the Trial Court to be paid to the respondent plaintiff within three weeks. On such deposit by the petitioner defendant, the Trial Court in requested to accept the written statement filed by the respondent and dispose of the suit in accordance with law.
22. Before parting with this case, it is necessary to observe that cannot be forgotten that the new Code was enacted by the Parliament in order to cut short delays at various levels. These salutary provisions were introduced in the new Code for speedy disposal of cases in consonance with fair play and justice. Therefore, Trial Courts must be extremely cautious in exercising powers under Order VIII Rule 9.