Himachal Pradesh High Court
State Of Hp vs Devi Ram on 1 July, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 163 of 2016 Date of decision: 1.7.2016 .
State of HP ...Petitioner
Versus
Devi Ram ...Respondent
Coram:-
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 No. of For the Petitioner: Ms.Meenakshi Sharma, Addl. AG with Mr. J.S. Guleria, Assistant Advocate General.
For the Respondent: rt Mr. Vivek Dharel, Advocate. _________________________________________________________ Tarlok Singh Chauhan J (Oral) This petition under Article 227 of the Constitution of India is directed against the order passed by the learned Civil Judge (Sr.Division), Theog on 12.1.2016, whereby he closed the right of the petitioner/defendant to file written statement only on the ground that the statutory period of 90 days in filing the same had already elapsed.
2. It is surprising to note that despite legal position on the subject having been authoritatively settled more than a decade ago that the statutory period of 90 days was only directory and not mandatory, the courts while feigning ignorance to the legal position, have continued to pass such like orders.
3. In Kailash Vs. Nanhku & ors (2005) 4 SCC 480, it was held by the Hon'ble Supreme Court that the provision contained in order 8 Rule 1 CPC is directory and not mandatory and it was further held that the court, for reasons to be recorded in Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
::: Downloaded on - 15/04/2017 20:44:48 :::HCHP 2writing, could permit filing of written statement beyond the period of 90 days. Though in ordinary course, the time schedule as .
provided under order 8 Rule 1 of CPC has to be followed as a rule and departure therefrom is an exception. Relevant observations read as under:-
of "(v) Though Order 8 Rule 1 CPC is a part of Procedural Law and hence directory, keeping in rt view the need for expeditious trial of civil causes which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time 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 asking, more so when the period of 90 days has expired. Extension of time may be allowed by way 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 was needed to be given for the 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."
4. Similar reiteration of law is found in Salem Advocate Bar Association, T.N. Vs. Union of India (2005) 6 SCC 344, wherein it was held as under:
::: Downloaded on - 15/04/2017 20:44:48 :::HCHP 3"21.In construing this provision, support can also be had .
from Order VIII Rule 10 which provides that 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, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement of under this provision, the Court has been given the discretion either to pronounce judgment against the rt defendant or make such other order in relation to suit as it thinks fit. In the context of the provision, despite use of the word 'shall', the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit.In construing the provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII Rule 1. There is no restriction in Order VIII Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to 'make such order in relation to the suit as it thinks fit'. Clearly, therefore, the provision of Order VIII 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 VIII Rule 1.::: Downloaded on - 15/04/2017 20:44:48 :::HCHP 4
5. The matter thereafter came up before a larger Bench of Hon'ble Three Judges of the Hon'ble Supreme Court in R.N. .
Jadi & Brothers & ors Vs. Subhashchandra (2007) 6 SCC 420, wherein it was held that the extension of time in departure of prescribed limit is not automatic, however, the same can be granted for the reasons to be recorded in writing and on being of satisfied with the reasons putforth to substantiate the failure to file written statement within the specified period are justifiable. The rt relevant observations are contained in paragraphs 14 and 15, which read thus:
"14. It is true that procedure is the handmaid of justice. The court must always be anxious to do justice and to prevent victories by way of technical knock-outs. But how far that concept can be stretched in the context of the amendments brought to the Code and in the light of the mischief that was sought to be averted is a question that has to be seriously considered. I am conscious that I was a party to the decision in Kailash vs. Nankhu and others (2005 (4) SCC 480) which held that the provision was directory and not mandatory But there could be situations where even a procedural provision could be construed as mandatory, no doubt retaining a power in the court, in an appropriate case, to exercise a jurisdiction to take out the rigor of that provision or to mitigate genuine hardship. It was in that context that in Kailash vs. Nankhu and others (supra) it was stated that the extension of time beyond 90 days was not automatic and that the court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from the time limit fixed by the Code and the power inhering in the court in terms of Section 148 of the Code. Kailash is no authority for ::: Downloaded on - 15/04/2017 20:44:48 :::HCHP 5 receiving written statements, after the expiry of the period permitted by law, in a routine manner.
.
15. A dispensation that makes Order VIII Rule 1 directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasize that the grant of extension of time beyond 30 of 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 rt 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 VIII Rule 1 must be adhered to and that only in rare and exceptional cases, 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 vs. SIR ALFRED McALPINE & SONS [(1968) 1 All E.R. 543] 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?"
6. Similar reiteration of the legal position is found thereafter in the judgment of the Hon'ble Supreme Court in Mohammed Yusuf Vs. Faij Mohammad & ors (2009) 3 SCC
513.
7. The enunciation of law, as referred to above, leaves no room for doubt that the provisions contained in order 8 Rule 1 ::: Downloaded on - 15/04/2017 20:44:48 :::HCHP 6 CPC are directory and not mandatory and that the time for filing written statement, for reasons to be recorded in writing, can be .
extended beyond the period of limitation, subject, of course, to the justification having been offered by the defendant for such extension in departure to the time limit fixed by the statute.
of
8. In the backdrop of what has been stated above, it would now be relevant to make reference to the impugned order which reads thus:
rt "12.1.2016 Present: Sh.Vikas Shayam,Adv for plaintiff.
Sh.Kamal Kishore, Ld. ADA for defendant Written statement not filed. Time prayed, which is opposed by Ld. Counsel for the plaintiff.
Heard and gone through the record. Perusal of the file shows that the statutory period of 90 days to file the written statement on behalf of defendant has already been lapsed. As such, the right of the defendant to file the written statement is hereby stuck off. Be listed for PWs on 16.5.2016."
9. It is evident from the aforesaid order that the petitioner/ defendant had sought time to file written statement and thus obviously would have some explanation to offer as to why the same could not be filed within the statutory period. But the learned court was not even prepared to permit the petitioner/defendant to offer such explanation. To say the least, the approach of the learned trial court is absolutely hyper technical.
::: Downloaded on - 15/04/2017 20:44:48 :::HCHP 710. The Court in such matters was required to adopt a justifiable and liberal approach unless it came to the conclusion .
that the litigant is out to abuse the process of Court or had no right in law or was trying to delay the outcome of the suit. It has to be understood that a litigant does not stand to benefit by not filing the written statement or filing the written statement belatedly.
of Refusing to condone the delay and taking on record the written statement can result in meritorious matters being decided ex parte rt which may result in cause of justice being denied. Even otherwise, when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred as the other side cannot claim to have vested right in injustice being done because of non deliberate delay .
11. There is no presumption that delay is occasioned deliberately or on account of culpable negligence or on account of malafides. A litigant does not stand to benefit by resorting to delay, rather he runs a serious risk. It must be grasped that the Judiciary is respected not on account of its powers to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. The matter has to be approached with a justice oriented approach.
12. In view of the aforesaid discussion, the impugned order dated 12.2.2016 passed by learned Civil Judge (Sr. Division), Theog cannot withstand judicial scrutiny and is, therefore, set aside. The petition is accordingly allowed. Parties, ::: Downloaded on - 15/04/2017 20:44:48 :::HCHP 8 through their learned counsel, are directed to appear before the trial court on 15.7.2016. The learned trial court shall now permit .
the petitioner to file the written statement, which in any event, shall be filed latest by 31.8.2016.
(Tarlok Singh Chauhan) Judge.
of July 1, 2016 (sl) rt ::: Downloaded on - 15/04/2017 20:44:48 :::HCHP