Telangana High Court
Mr. Mir Akbar All Khan, vs Mrs. Sarwarunnisa Begum, on 29 August, 2024
THE HONOURABLE SRI JUSTICE SUJOY PAUL
CIVIL REVISION PETITION No.1747 of 2024
ORDER:
The challenge in this petition is mounted to the order dated 04.01.2024, whereby I.A.No.1090 of 2023 in S.O.P.No.6 of 2023 on the file of I Senior Civil Judge, City Civil Court, Hyderabad, was decided.
2. The admitted facts between the parties are that the main case was filed for grant of succession certificate. The petitioner/respondent No.2 remained absent on several dates. Since on 31.08.2023 also the petitioner remained absent, the trial Court forfeited his right to file written statement/counter. The said order is sought to be recalled/set aside by filing the application under Order IX Rule 7 read with Section 151 of Civil Procedure Code (CPC). The Court rejected the same.
3. Learned counsel for the petitioner submits that in view of the judgment of Supreme Court in the case of Raj Process Equipments and Systems Pvt. Ltd. vs. Hones Derivatives Pvt. Ltd. 1, it is clear that Order VIII Rule 1 of CPC is directory in 1 Civil Appeal No.8089 of 2022, dated 03.11.2022. 2
SP, J CRP_1747_2024 nature, which was based on Salem Advocate Bar Association vs. Union of India 2. In this view of the matter, the Court should have recalled the order and permitted the petitioner to file his written statement.
4. The prayer is opposed by the other side on the basis of judgment of Madhya Pradesh High Court in the case of Salim Khan vs. Nargis Begum 3.
5. I have heard the parties at length and perused the record.
6. The trial Court rejected the application by assigning the following reasons:
"Upon perusing the record, the docket in SOP shows that respondent No.2 made his appearance through his counsel on 23.03.2023 and thereafter it was posted to 31.03.2023, 20.04.2023, 15.06.2023, 10.07.2023, 03.08.2023, 17.08.2023, 31.08.2023 on several conditional orders and inspite of it, petitioner failed to file counter. Moreover, except taking plea of being sick for one week before setting his exparte, could not produce any medical certificate to show that he was unable to appear before the Court or before his counsel to file the counter. Petitioner could not give any cogent cause for not filing the counter from 31.03.2023 to 31.08.2023 i.e., for a period of 5 months. Hence, petition is found to be devoid of merits."
(Emphasis Supplied) 2 (2005) 6 SCC 344 3 2015 SCC OnLine MP 5136 3 SP, J CRP_1747_2024
7. The finding of fact recorded by the trial Court is not doubted by the learned counsel for the petitioner. Thus, the petitioner consistently remained absent in the main proceedings and accordingly his right to file written statement was closed. The petitioner has not filed any medical certificate to establish his inability to appear on 31.08.2023.
8. The judgment in the case of Raj Process Equipments and Systems Pvt. Ltd. (supra) is basically on the point that time limit for filing written statement as per CPC is not mandatory when suit was instituted before normal Civil Court and transferred to Commercial Court after expiry of 120 days. In the instant case, admittedly, the suit was never transferred to Commercial Court.
9. The High Court of Madhya Pradesh in the case of Bismilla Bee vs. Arjuman Aara 4, at relevant paragraphs 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, Civil Procedure Code 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 4 2014 (3) MPLJ 593 4 SP, J CRP_1747_2024 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 wav 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, Civil Procedure Code 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 Association, T.N. v. 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.
13. In (2007) 6 SCC 420, R.N. Jadi and Brothers v. Subhash Chandra the Apex Court opined 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 5 SP, J CRP_1747_2024 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 and Sons, reported in (1968) 2 QB 229 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?
14. In (2007) 14 SCC 431, Aditya Hotels (P) Ltd. v. 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) MPLJ (S.C.) 315 : (2014) 2 SCC 302, Sandeep Thapar v. 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, 6 SP, J CRP_1747_2024 permission cannot be granted. The impugned order shows that Court has mechanically granted the permission much after 90 days.
15. Although Shri A.Y. Bhardwaj stated that the procedural law is handmaid 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 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."
(Emphasis Supplied)
10. After considering the judgment of Supreme Court in the case of Salem Advocate Bar Association (supra) and other relevant judgments, the High Court of Madhya Pradesh in the aforesaid judgment made it clear that the extension of time for filing written statement beyond 90 days can be given only on establishing adequate and special reasons. The extension cannot be granted leniently or on mere asking.
11. The instant case is a chronic case of laxity and gross negligence on the part of petitioner and no special or adequate reasons were shown to seek an extension of time for not filing written statement. Pertinently, even in the application under Order IX Rule 7 of CPC no special reasons are assigned for non filing of written statement within stipulated time. 7
SP, J CRP_1747_2024
12. In this backdrop, it is not possible to hold that the trial Court has committed any error in passing the impugned order dated 04.01.2024.
13. In the opinion of this Court, the Court below has taken a plausible view. The scope of interference under Article 227 of the Constitution is limited. If the impugned order is passed by a Court having no jurisdiction, order suffers from any patent illegality or palpable procedural impropriety, interference can be made. Another view is possible, is not a ground for interference. This Court cannot act as bull in china shop to interfere on mere asking (see Shalini Shyam Shetty vs. Rajendra Shankar Patil 5). In the instant case, there is no ingredient on which interference can be made.
14. In the result, the Civil Revision Petition is dismissed. There shall be no order as to costs. Miscellaneous applications, if any, pending shall stand closed.
______________________ JUSTICE SUJOY PAUL Date: 29.08.2024 GVR 5 (2010) 8 SCC 329