Justice. Micheal F.Saldanha (Retd.) vs Sri. M.P. Noronha (Melwyn Prakash ... on 23 August, 2016

[Cites 14, Cited by 1]

Karnataka High Court

Justice. Micheal F.Saldanha (Retd.) vs Sri. M.P. Noronha (Melwyn Prakash ... on 23 August, 2016

2. The petitioner, in this writ petition, has challenged the order dated 16.3.2016 passed by the Trial Court rejecting I.A.No.IX filed on his behalf under Order VIII Rule 1 read with Section 151 CPC seeking condonation of delay of 312 days in filing the written statement.

3. Heard Sri Vivek Reddy, learned Senior Counsel for the petitioner and Sri Jayakumar S. Patil, learned Senior Counsel for the caveator/respondent No.1.

4. The first respondent - plaintiff has filed O.S.No.171/2014 with following prayers:-

(a) For a permanent prohibitory injunction restraining the defendants, their men, servants, agents or anybody claiming through or under them from making/publishing defamatory statements or any statements photos, pictures, articles relating to Plaintiff/applicant tending to damage the reputation of the plaintiff,

(b) Directing the defendants jointly and severally to pay sum of Rs.5,50,000/- towards the damages to the Plaintiff,

(c) Cost of the suit,

(d) Such other and further relief's as the court deems fit to grant.

5. Petitioner entered appearance in the suit through his Advocate on 13.3.2013 by filing Vakalathnama. He filed I.A.No.V under Section 151 CPC with a prayer to direct the plaintiff to furnish copies of the plaint documents to enable him to file written statement. It is contended by the petitioner in the affidavit that as many as 43 documents were annexed to the plaint and the same were not given to him. It is further contended that the petitioner is a retired Judge of this Court and High Court of Maharashtra (sic Bombay). He is presently associated with the Hon'ble Supreme Court of India and Government of India in the process of judicial reforms. In view of his engagements, he could not be expected to go to Mangaluru and take inspection of the documents either from the Court records or from plaintiff's office. Hence, he has filed I.A.No.V seeking a direction to the plaintiff to furnish the documents relied upon by him in 6 the suit. The said I.A. was resisted by the plaintiff by filing objections. The trial Court rejected the said I.A.V.

6. The petitioner also filed I.A.No.VI under Section 148 CPC with a prayer to extend time by 30 days to file written statement. The said I.A. was allowed on 10.4.2015 granting time to file written statement.

7. On 18.2.2016, petitioner filed his written statement along with I.A.No.IX with a prayer to condone delay of 312 days in filing the written statement and to receive the same. The affidavit filed in support of I.A.No.IX reads as follows:-

"I, JUSTICE MICHAEL F. SALDANHA, Indian inhabitant, aged 73 years, residing at 401, Silvercrest, 13, Rest House Road, Bangalore - 560 001, state on solemn affirmation as follows:

1. I say that I am the Defendant No.5 above named. I say that this is a very important case wherein the decision will create many 7 precedents, the first of them being as to how this case has been entertained from a professional who is himself facing a Criminal Prosecution for having tendered an admittedly forged document in a Judicial Proceeding in this very Court apart from a long list of Criminal activities and misconduct, despite which, he is able to secure a Blank Injunction Order against the media which Order overrides legalities and constitutional provisions. I propose to seriously contest these proceedings but I am handicapped from doing so because the Plaintiff relies on over two dozen documents of which copies are not furnished to the Defendants which is a basic requirement of Law. I had instructed my Ld. Advocate to apply to the Court for a direction that the Plaintiffs should be ordered to furnish Certified Copies of whatever documents he is relying on but I am informed that the Application was rejected. I say that this is a case in which the High Court has directed a Criminal Prosecution against the Plaintiff for offences of forgery and user of a forged documents and that there is nothing that 8 comes from him which is of any credibility.

In these circumstances, unless I am furnished with Certified Copies of all the originals, I am legally handicapped from filing my Written Statement. I am once again requesting the Hon'ble Court to direct the Plaintiff to furnish me with credible Certified Copies of all documents, and to grant me atleast four weeks time to file my Supplementary Written Statement.

2. I say that I am actively involved with the Supreme Court, the Bar Council of India and the Government of India, in the matter of overhauling and cleansing the Judicial System. I spend most of my time in Delhi and in different States. I submit that in view of what has been pointed out by me above, that there is no delay in filing the Written Statement - on the contrary, I have been prevented from doing so.

3. Without prejudice to what has been stated above, I am filing my Written Statement under protest to the extent that it has been possible with the added submission that the same may be taken on record and if it is 9 technically contended that there is delay in filing the same, that since the delay is neither deliberate nor due to negligence, that the same may kindly be condoned. I may also be granted the liberty of filing a supplementary Written Statement after receipt of Certified Copies of the Documents."

8. The first respondent - plaintiff opposed I.A.No.IX by filing statement of objections contending inter alia that the said application was not maintainable; and that the petitioner had not made out any substantial grounds to condone the delay of 312 days in filing the written statement.

9. On consideration of the material on record and after hearing both sides, the Trial Court dismissed the I.A.No.IX assigning the reasons stated therein.

10. Assailing the correctness of the impugned order, Sri Vivek Reddy, learned Senior Counsel for the petitioner made following submissions:- 10

(i) that refusal to condone the delay in filing the written statement shall have serious ramifications;

(ii) that petitioner's rights are adversely affected as he is prevented from filing his written statement on hyper-technical grounds;

(iii) that ends of justice require that reasonable opportunity must be given to a defendant to place on record his version by way of written statement; and

(iv) that the Court has ample power under Section 151 CPC to fill up the gaps and to pass such necessary orders to meet ends of justice.

11. Placing reliance on paragraph No.7 of the judgment of the Hon'ble Supreme Court in the case of Sandeep Thapar v. SME Technologies Private Limited reported in (2014) 2 SCC 302, he submitted that Order VIII Rule 1 CPC is directory in nature and 11 therefore the power of the Court to extend time to file written statement beyond the prescribed period provided therein is not completely taken away. Further he drew the attention of this Court to another Judgment of the Hon'ble Supreme Court in the case of Zolba v. Keshao and others reported in (2008) 11 SCC 769, to fortify his submission that the Order VIII Rule 1 CPC is directory in nature and would not leave Court helpless to meet extra-ordinary situations.

12. Per contra, Sri Jayakumar S. Patil, learned Senior Counsel submitted that I.A.No.VI filed by the petitioner seeking extension of time was allowed by the Trial Court on 10.4.2015 and 30 days time was granted. The Code of Civil Procedure does not mandate that copies of the documents annexed to the plaint should be furnished to a defendant. Defendant is always with liberty to take inspection of records. The affidavit filed in support of I.A.No.IX to condone the delay of 312 days 12 does not contain any valid and cogent reasons. Therefore, the impugned order passed by the Trial Court does not warrant any interference by this Court. Accordingly, he prays for dismissal of this writ petition.

13. I have given my careful consideration to the submissions of the learned Senior Counsel for the petitioner and the 1st respondent. I have also perused material papers and the judgments cited by the learned senior Counsel for the parties.

14. Order VIII Rule 1 CPC with the proviso, reads as follows:-

"ORDER VIII [WRITTEN STATEMENT, SET-OFF AND COUNTER-

CLAIM]

1. Written statement. - The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defense:

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 13 not be later than ninety days from date of summons.]"

(emphasis is mine)

15. Records disclose that the petitioner was served with suit summons on 11.3.2015. Since he remained absent on the date of hearing, he was placed ex parte. He entered appearance on 13.3.2015 through his Advocate. I.A.No.VI was filed seeking extension of 30 days time to file written statement and the same was granted. Thereafter, I.A.No.IX was filed by the petitioner on 18.2.2016 supported with the affidavit extracted supra. Respondent No.1 - Plaintiff opposed the said I.A. Trial Court has dismissed I.A.IX by the impugned order for the reasons assigned therein.

16. In the backdrop of the pleadings on record and the submissions of the learned Senior Counsel for the parties, the question that falls for consideration of this Court in this writ petition is, whether the petitioner 14 has made out a case to condone the delay of 312 days in filing the written statement and to accept the same.

17. Condonation of delay depends upon the cause shown in the affidavit. It is mainly stated in the affidavit, that:

• the petitioner had instructed his advocate to apply to the trial Court for a direction to the plaintiff to furnish copies of documents relied upon by him;

• the petitioner was handicapped from filing the written statement for want of documents;

• petitioner is actively involved with the Hon'ble Supreme Court, Bar Council of India and spends most of his time in Delhi and different States; and • in view of what is pointed out in the affidavit, there is no delay in filing the written statement, but on the contrary he was prevented from doing so.

18. The sheet anchor of argument of Mr. Vivek Reddy, learned Senior Counsel is that Order VIII Rule 1 CPC is directory in nature. Therefore, the Trial Court 15 ought to have considered prayer for condonation of delay in the light of the judgments of the Hon'ble Supreme Court relied upon by him.

19. The petitioner is a former Judge of the High Court of Bombay and this Court. The suit filed against him and others is one for prohibitory injunction restraining the defendants from making or publishing defamatory statements, photos, pictures etc., relating to the plaintiff and also for a direction to pay a sum of Rs.5,50,000/- jointly and severally towards the damages to the plaintiff.

20. In the affidavit filed in support of the instant I.A. (I.A.No.IX), it is stated that the petitioner desired to seriously contest the proceedings but he was handicapped for want of documents annexed to the plaint. It is further stated that in view of his engagements, he had instructed his Advocate to seek 16 appropriate directions. Although, it is the case of the petitioner that he was handicapped from filing the written statement for want of documents, the fact remains that as on date, he has filed the written statement along with the instant I.A., with a prayer to condone the delay in filing the written statement.

21. It is fairly well settled that procedural law must be a handmaid of justice. Learned Counsel for the petitioner placing reliance on the judgments of the Supreme Court in the case of Sandeep Thapar and Zolba, supra reiterated that provisions of Order VIII Rule 1 CPC are directory in nature and urged that delay may be condoned.

22. At this juncture, it may be profitable to note the judgment of the Hon'ble Supreme Court in the case of R.N.Jadi & Brothers and others v.

Subhashchandra reported in (2007) 6 SCC 420. In the 17 said case, written statement was filed belatedly and the same was accepted by the Trial Court. This Court in a writ petition under Article 227 of Constitution of India had set aside the order of the Trial Court accepting the written statement. A writ appeal filed thereon was held to be not maintainable. In the S.L.P. filed against the order in writ petition, the Hon'ble Supreme Court after considering various judgments on the point has held as follows:-

"11. The mortality of justice at the hands of law troubles a judge's conscience and points an angry interrogation at the law reformer.

12. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence, processual, as much as 18 substantive. (See Sushil Kumar Sen v. State of Bihar2.)

13. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. (See Blyth v. Blyth3) A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. (See Shreenath v. Rajesh4)

14. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.

15. It is also to be noted that though the power of the court under the proviso appended to Rule 1 of Order 8 is circumscribed by the words 'shall not

2. (1975) 1 SCC 774

3. 1966 AC 643 : (1966) 2 WLR 634 : (1966) 1 All ER 524 (HL)

4. (1998) 4 SCC 542 : AIR 1998 SC 1827 19 be later than ninety days' but the consequences flowing from non-extension of time are not specifically provided for though they may be read by necessary implication. Merely, because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form.

16. Challenge to the constitutional validity of the Amendment Act and the 1999 Amendment Act was rejected by this Court in Salem Advocate Bar Assn. (I) v. Union of India5. However, to work out modalities in respect of certain provisions a committee was constituted. After receipt of the committee's report the matter was considered by a three-Judge Bench in Salem Advocate Bar Assn. (II) v. Union of India6. As regards Order 8 Rule 1 the committee's report is as follows: (SCC pp. 362-63, paras 15-18)

5. (2003) 1 SCC 49 : JT (2002) 9 SC 175

6. (2005) 6 SCC 344 : JT (2005) 6 SC 486 20 '15. The question is whether the court has any power or jurisdiction to extend the period beyond 90 days. The maximum period of 90 days to file written statement has been provided but the consequences on failure to file written statement within the said period have not been provided for in Order 8 Rule 1. The point for consideration is whether the provision providing for maximum period of ninety days is mandatory and, therefore, the court is altogether powerless to extend the time even in an exceptionally hard case.

16. It has been common practice for the parties to take long adjournments for filing written statements. The legislature with a view to curb this practice and to avoid unnecessary delay and adjournments, has provided for the maximum period within which the written statement is required to be filed. The mandatory or directory nature of Order 8 Rule 1 shall have to be determined by having regard to the object sought to be achieved by the amendment. It is, thus, necessary to find out the intention of the legislature. The consequences which may follow and 21 whether the same were intended by the legislature have also to be kept in view.

17. In Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur7 a Constitution Bench of this Court held that the question whether a particular provision is mandatory or directory cannot be resolved by laying down any general rule and it would depend upon the facts of each case and for that purpose the object of the statute in making out the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory."

7. AIR 1965 SC 895 22 and set aside the order passed by this Court by holding thus:-

"9. In view of what has been stated above, we set aside the impugned orders of the High Court. The written statement already filed shall be duly taken note of by the trial Court. The appeal is allowed but without any order as to costs."

23. Further, in a recent judgment in the case of C.N. Ramappa Gowda v. C. C. Chandregowda (dead) by LRs. and another reported in (2012)5 SCC 265, the Hon'ble Supreme Court was considering a suit for specific performance in which written statement was not filed. A division bench of this Court had allowed the appeal and remitted the matter for a de novo trial permitting the defendant therein to file written statement. Approving the judgment of this Court and balancing the scale of equity, the Apex Court has held as follows:-

"30. As a consequence of the aforesaid analysis and the reasons recorded hereinabove, we are of the view that the High Court was legally justified in setting aside the judgement and decree of 23 the trial court and allowing the appeal to the limited extent of remanding the matter to the trial court for a de-novo trial after permitting the respondent- defendant to file the written statement. The appeal consequently stands dismissed. However, we are conscious of the fact that the appellant-plaintiff for no fault on his part has been forced to entangle himself in the appeal before the High Court as the respondent giving rise to an appeal before this Court, although the respondent-defendant had leisurely failed to file the written statement in spite of numerous opportunities to file the same and also had failed to cross-examine the plaintiff witnesses, but once the decree for partition of half share was passed in favour of the appellant-plaintiff, the respondent-defendant promptly challenged the same by filing an appeal before the High Court.

31. Since the disposal of the suit for partition has now been dragged into a protracted retrial of the suit, we consider it legally just and appropriate to balance the scales of equity and fair play by awarding a sum of rupees twenty five thousand by way of a token cost to the Appellant-Plaintiff to be paid by the respondent-defendant as the impugned order of the High Court directing retrial shall be given effect to only thereafter."

(emphasis is mine) 24

24. Further, in the case of Rani Kusum(Smt.) v. Kanchan Devi (Smt) and others reported in (2005) 6 SCC 705, the Hon'ble Supreme Court has held that 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.

25. It therefore follows that a defendant must have a reasonable opportunity to put forth his defense before the Court. But, I must hasten to add the said view should not be stretched unreasonably which may result in violent infraction of Order VIII Rule 1 CPC. Therefore, any order to condone the delay in filing the written statement should be after a critical analysis of facts and circumstances of individual cases.

26. Admittedly, the instant suit was filed in October 2014. Though belatedly, the petitioner has now filed the written statement. I.A.No.IX is for 25 condonation of delay of 312 days in filing written statement. Thus, respectfully following the ratio of the judgments of the Hon'ble Supreme Court in the cases of R.N.Jadi, C.N. Ramappa Gowda and Ranikusum supra, in my view, this writ petition merits consideration.

27. Further, following the judgment of the Hon'ble Supreme Court in the case of C.N. Ramappa Gowda and Ranikusum supra, it would be appropriate to balance the scale of equity by awarding a sum of Rs.5,000/- by way of token costs payable to 1st respondent.

28. In the result,

(i) Writ Petition is allowed and Rule made absolute;

(ii) Order dated 16.3.2016 on I.A.No.IX filed under Order VIII Rule 1 read with Section 26 151 CPC in O.S.No.171/2014, passed by the Trial Court, is set aside;

(iii) I.A.No.IX is allowed and Trial Court is directed to accept the written statement and proceed further;

(iv) The first respondent shall be entitled for costs of Rs.5,000/- payable by the petitioner.

Sd/-

JUDGE cp*/Yn.

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