Patna High Court
Shivdani Singh @ Sheo Dani Singh And Ors. vs Guljar Singh And Ors. on 30 March, 2006
Equivalent citations: AIR2006PAT124, AIR 2006 PATNA 124, 2006 (5) ALL LJ NOC 1142, 2006 (3) AIR JHAR R 342, 2006 (5) AKAR (NOC) 628 (PAT), 2006 A I H C (NOC) 290 (PAT), 2006 (1) BLJR 728, (2006) 4 CIVLJ 816
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh
JUDGMENT Navaniti Prasad Singh, J.
Page 729
1. This is an application by the plaintiff-petitioners being aggrieved by the impugned order 12.10.2004 passed by the learned Sub Judge-III, Aurangabad in a partition suit, By the impuqned order the learned trial court has accepted the written statement of the intervenor-defendants to the said partition suit by recallinq his earlier order by which he had debarred the said intervenor-defendants from filinq their written statement,
2. Mr. Shashi Shekhar Dwivedi, learned senior counsel for the plaintiffs-petitioners urged that in view of provision of Order VIII Rule 1 C.P.C., as amended in 2002, the written statement could not be accepted. On the other-hand, appearinq for the intervenor-defendants learned senior counsel has cited recent decisions of the apex court, namely, Kailash v. Nanhku and Ors. , 2006(1) PLJR 154(SC), Mr. Shaikh Haji Abdul Khavumsab v. Mr. Kumar and Ors. as also a recent judgment of this court reported In (Smt. Sumta Devi and Ors. v. Abdhesh Kr. Sinha alias Kamleshwari Pd. Sinha and Ors.)
3. On the first impression, it appears, the matter was very trivial by which justice would be done by permitting the written statement to be admitted as has been done by the trial court but to me it appears that could be against the legislative Intention under Order VIII Rule 1 C.P.C. as it would negate the very legislative intention for the reasons which I will hereinafter, show.
4. On behalf of the opposite party it has been submitted that in terms of Order VIII Rule 1 C.P.C. the trial court has jurisdiction to extend the time. It exercised its jurisdiction and discretion and as such this court, in revisional jurisdiction, should not interfere with either the jurisdiction or discretion. It was then submitted that, as has been held by the apex court and this court, this provision is directory and not mandatory being provision of procedural law. It is settled that procedural law is to be handmaid of justice and not to wreck in justice. It was then lastly submitted that if the written statement is allowed to be filed no prejudice would be caused to the plaintiffs as plaintiffs would only be litigating for the right asserted by them in a fair and just manner but if the defendants- opposite party is debarred from filing the written statement great loss would be caused to them.
5. In view of the three submissions aforesaid it is submitted that the revision application is fit to be dismissed and the order of the trial court needs no interference. I am afraid I cannot accept either of the three contentions for the reasons indicated hereafter.
6. The suit for partition was filed in the year 1988. Intervenor-defendants opposite party appeared and intervention application was allowed by order dated 25.2.2002 , While accepting their intervention the trial court directed them to file written statement. It goes without saying that a party who choses to file an intervention petition is aware of his right and it is in order to assert that right, he moves the court. Page 730 It cannot, be said that a party intervenes to assert his right on the basis of facts and materials to be gathered subsequently. He is already aware of the right. Though the intervention application was allowed on 25.5.2002, for the next one and half year the intervenor-defendants took no step to file the written statement. The amended provision of Order VIII Rule 1 C.P.C. gives a discretion of maximum 90 days to the court. Here several 90 days have elapsed and as such the court was left with no option but, by order dated 21,8.2003 to debar the intervenor-defendants from filing any written statement. Again the matter lingered and then after almost one year i.e. on 14,7.2004 the written statement was merely filed in the trial court even though debarred earlier. There was no application for condoning the delay or extension of time or for recalling of earlier order of debarment. Thereafter on 13.8,2004 an application for recall of order dated 21.8,2003 was filed. By the said order, as stated above, the intervenor-defendants had been debarred from filing written statement. The application for recall has been annexed as Annexure 1 to the present revision application. It is an apology for an application for recall. The only ground given thereunder is that there was delay in filing the written statement as some papers (undisclosed) were not available. It was not disclosed as to which paper was not available and when it became available and how it was material for the litigation. The application was filed in a most mechanical and pedantic manner. If that was not enouqh even the party did not appear before the trial court. On the basis of the said application only, the trial court refused the objection of the petitioners that in view of the amended provision time could not be extended or order could not be recalled.
7. The trial court by the impugned order mere held that considering the aforesaid facts and circumstances and in view of "natural justice" , petition of intervenor-defendants dated 13.8.04 is allowed subject to payment of cost of Rs. 300/- each. This again is an apology for a judicial order. What the learned judge merit by "natural justice" one wonders. The order was passed in most mechanical manner and cannot be within the exception as carved out by the apex court and other judgments in this regard.
7. Now coming to the submission of the defendant-opposite party that this court cannot and should not interfere when the trial court has exercised its discretion falling in its jurisdiction. I am of the view that language of Order VIII Rule 1 C.P.C. is couched in a mandatory manner, though it is directory, as held by the apex court. It does not mean that the trial court has an absolute unfettered discretion in the matter.
8. In my view it lacks the jurisdiction to extend the time as statutorily fixed. It gives the discretion only if subsequent facts and circumstances are brought before it to justify invoking the jurisdiction. Then again the exercise of discretion is not. as a matter of course. The discretion has to be exercised on cogent, facts and materials. In the present case the court has not applied its mind at all to the fact that it took intervenor-defendants over 2 1/2 years to file the written statement, one year after it had been debarred and that too was done in a most mechanical manner without there being a petition for recall. The petition for recall also is a vague and devoid of any material justifying the discretion as exercised by the trial court. Therefore, I hold that the trial court in the facts and circumstances , as stated above, lacked the jurisdiction to extend the time and further the discretion, if any, has been exercised in a mechanical manner and cannot be affirmed by this court.
Page 731
9. If the court allows delay in filing of written statement in such a manner and to compensate for the delay by payment of some money, it would be putting premium on delay, I have no hesitation in rejecting the first submission of learned senior counsel for the intervenor-defendants,
10. So far as the second submission is concerned, in relation to the cases cited including the judgment of the apex court there is no quarrel with the proposition. The apex court has settled the matter but while doing so the apex court has pointed out that even though the words of Orders Rule 1 are mandatory in its application the said provision has to be held to be directory. The apex court has cautioned that this does not mean that the time should be extended mechanically. The apex court has held as follows in para 40:-
Considering the object and purpose behind enacting Rule 1 of Order VIII in the present form and the context in which the provisions is placed, we are of the opinion that the provision has to be construed as directory and not mandatory. In exceptional situations, the court may extend the time for filing the written statement though the period of 30 days and 90 days, referred to in the provision, has expired. However, we may not be understood as nullifying the entire force and impact- the entire life and vigour of the provision. The delaying tactics adopted by the defendants in law courts are now proverbial as they do stand to gain by delay.
11. In this connection I may mention here that it is well settled that the procedural law is handmaid of justice and should not be made handmaid for injustice. Therefore, I find no force in the submission of the learned senior counsel appearing on behalf of intervenor-defendants (opposite party).
12. The last submission made is that by disallowing the intervenor-defendants from filing the written statement, he will be prejudiced but by allowing the same no prejudice could be caused to the plaintiffs-petitioners, I am afraid the question of prejudice is not to be considered here. What is to be considered is whether there was justifiable ground for extending the time inspite of statutory provision like Order 8 Rule 1 C.P.C. I am conscious of the fact that Order 8 Rule 1 C.P.C. does not give plaintiff a legal right to be asserted by him but it surely restricts the right of a defendant to proceed in leisurely manner in a litigation at the cost of the plaintiff. The prejudice caused is totally misplaced.
13. I accordingly allow this application and set aside the order dated 12.10.04 passed by learned Sub Judge III, Aurangabad in Partition Suit No. 14 of 1998 / 41 of 1999 and directed the trial court to proceed with the suit expeditiously. Petitioners will be entitled to cost of Rs. 1000/ to be paid b the intervenor defendants.