Madhya Pradesh High Court
Deepak vs Devendra Nath Bhargav on 20 September, 2019
Author: Nandita Dubey
Bench: Nandita Dubey
1
HIGH COURT OF MADHYA PRADESH
Misc. Petition No. 4025/2019
(Deepak Khandelwal Vs. Devendra Nath Bhargav)
Jabalpur, Dated :20.09.2019
Shri Vivek Agrawal, learned counsel for the petitioner.
Shri Sarvesh Agrawal, learned counsel for the
respondent.
With the consent of learned counsel for the parties, heard finally.
The petitioner is aggrieved by the order dated 11.07.2019, passed by First Civil Judge Class I, Betul in RCSA No.107/2018, whereby his right to file written statement has been closed.
It is reflected from the impugned order and the documents filed alongwith the petition that the petitioner has received the summons on 20.02.2019. The defendant made appearance through his counsel before the Court on 22.02.2019. On 28.03.2019, the petitioner filed an application under Order 32 Rule 1 of C.P.C. seeking appointment of his wife as legal guardian/next friend in the suit stating that the defendant is of unsound mind and unable to contest the suit himself. The trial Court vide order dated 03.07.2019, dismissed the aforesaid application on the 2 HIGH COURT OF MADHYA PRADESH Misc. Petition No. 4025/2019 (Deepak Khandelwal Vs. Devendra Nath Bhargav) ground that the doctor has not given any opinion regarding mental health of the petitioner. Since the written statement was not filed till 11.07.2019, the trial Court considering that the 90 days time limit provided under Order 8 Rule 1 of the C.P.C. is over, closed the right of defendant/petitioner to file the written statement.
The provision, Order 8 Rule 1 of C.P.C. has come up for interpretation before the Supreme Court in number of cases. In Atcom Technologies Ltd. Vs. Y.A. Chunawala (2018) 6 SCC 639 the Supreme Court has observed :-
15. This provision has come up for interpretation before this Court in number of cases. No doubt, the words 'shall not be later than ninety days' do not take away the power of the Court to accept written statement beyond that time and it is also held that the nature of the provision is procedural and it is not a part of substantive law. At the same time, this Court has also mandated that time can be extended only in exceptionally hard cases. We would like to reproduce the following discussion from the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, (2005) 6 SCC 344:
"21. ...There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be 3 HIGH COURT OF MADHYA PRADESH Misc. Petition No. 4025/2019 (Deepak Khandelwal Vs. Devendra Nath Bhargav) 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 8 Rule 1 providing for the 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."
In view of the aforesaid dictum and the fact that the suit was filed in 2018 itself, and at the initial stage only, grant of one more opportunity for filing the written statement to defendant/petitioner would not cause any prejudice to the plaintiff. Hence, in the interest of justice, one more opportunity to file written statement is granted to the defendant/petitioner, subject to payment of cost of Rs.3,000/- (Rs. Three Thousand only) to be deposited online within a period of one week from today in the National Defence Fund (NDF) and submit the receipt 4 HIGH COURT OF MADHYA PRADESH Misc. Petition No. 4025/2019 (Deepak Khandelwal Vs. Devendra Nath Bhargav) thereof before the Trial Court within a further period of one week alongwith the written statement.
It is made clear that no further opportunity shall be granted to the defendant/petitioner for this purpose.
With the aforesaid direction, this petition stands allowed.
(Nandita Dubey) Judge gn Digitally signed by GEETHA NAIR Date: 2019.09.23 15:42:12 +05'30'