Calcutta High Court (Appellete Side)
Munni Devi Kanwar & Ors vs The Digamber Jain Bhawan & Ors on 2 January, 2020
Author: Shampa Sarkar
Bench: Shampa Sarkar
1 02.01.2020 Court No. 19 Item No. 10 CP C.O. 4219 of 2019 Munni Devi Kanwar & ors.
vs. The Digamber Jain Bhawan & ors.
Mr. Amritalal Dhar, Ms. P. P. Roy.
.....for the petitioners.
Mr. Manas Kr. Ghosh, Ms. Susmita Dey (Basu).
....for the opposite parties.
The defendants in a suit for eviction of a licensee being Title Suit No. 1569 of 2018, has preferred this application aggrieved by an order dated August 29, 2019 passed by the learned Judge, XIIth Bench, City Civil Court at Calcutta. By the order impugned, the written statement filed by the defendants was not accepted on the ground that the summons were received on January 4, 2019 and the written statement had been filed by the defendants on July 11, 2019, that is, beyond the statutory period.
It is the contention of the petitioners/defendants that the learned Court below fixed April 29, 2019 for filing the written statement. The written statement could not be filed on that date because there was a resolution of the Bar as appears from the order sheet and the case was fixed on July 11, 2019 for filing of written statement. The Court itself had extended the time to file the written 2 statement by the defendants to July 11, 2019. Record reveals that on July 11, 2019 itself the written statement was filed. The Court fixed August 6, 2019 as the date for acceptance of the written statement. On August 29, 2019, the Court held that the written statement could not be accepted beyond the permissible period of 120 days.
It is submitted on behalf of the plaintiffs that the defendants failed to submit the written statement within the statutory period of limitation of 120 days; that there was no application for acceptance of the said written statement beyond the statutory period. It is further submitted that amendment to Order 8 Rule 10 of the Code of Civil Procedure prohibits the Court from extending time to file written statement and a judgment in the matter of SCG Contracts India Pvt. Ltd. vs. K.S. Chamankar Infrastructure Pvt. Ltd. & ors., reported in 2019 SCC Online SC 226, has been relied upon by the learned advocate for the opposite parties.
I have heard the contention of the learned advocates for the respective parties. Having considered the certified copy of the record, it appears that the date fixed by the learned Court below for filing of the written statement was April 29, 2019. In the order no. 3 dated April 29, 2019, the learned Court has recorded an order that as per the resolution of the local Bar no steps were taken by the learned advocate-on-record. None appeared before the Court. For the ends of justice the case was fixed on July 11, 2019 for filing written statement by the defendants. On July 11, 2019 the written statement was filed and, thereafter by the order impugned the learned Court below refused to accept the written 3 statement. Admittedly, the learned Court by an order dated April 29, 2019 itself had fixed July 11, 2019 for filing of the written statement by the defendants. It is also true that on April 29, 2019 the learned advocate did not appear before the learned Court below and, as such, the written statement could not be filed. Although the defendants could have filed the written statement by way of put up petition between April 29, 2019 to July 11, 2019, but when the Court itself had recorded that July 11, 2019 was the fixed date for filing written statement by the defendants, I do not see any reason why the Court could have not accepted the written statement which was filed on July 11, 2019, i.e. on the extended date fixed by the learned Court below.
A litigant cannot suffer because of whims of the Court. Once the learned Court below had itself fixed the date for filing the written statement by the defendants as July 11, 2019 and records reveal that the written statement was filed on July 11, 2019, the question of not accepting the said written statement does not arise. It cannot be said that the litigant was not diligent or had adopted dilatory tactic in order to procrastinate the litigation.
In the decision of Salem Advocate Bar Association, T.N. vs. Union of India, reported in (2005) 6 SCC 344, the Hon'ble Apex Court held as follows:-
"20. The use of the word "shall" in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word "shall" is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes 4 justice and prevents miscarriage has to be preferred. The rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice."
In the decision of Sandeep Thapar vs. SME Technologies Private Limited, reported in (2014) 2 SCC 302, the Hon'ble Apex Court held as follows:-
"6. The learned counsel for the appellant has submitted that undoubtedly the limit under Order 8 Rule 1 has to be observed, but in exceptional circumstances in order to ensure that the injustice is not done, the court will have the power to permit the defendant to file the written statement.
7. We have considered the submission made by the learned counsel. In our opinion, the submission made by the learned counsel is well founded in view of the observations made by this Court in Kailash v. Nanhku [(2005) 4 SCC 480] , wherein this Court has observed as follows: (SCC pp. 499-500, para 46) "46. We sum up and briefly state our conclusions as under:
(i)-(iii)***
(iv) The purpose of providing the time schedule for filing the written statement under Order 8 Rule 1 CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the court to extend the time. Though, the language of the proviso to Rule 1 of Order 8 CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the procedural law, it has to be held directory and not mandatory. The power of the court to extend time for filing the written statement beyond the time schedule provided by Order 8 Rule 1 CPC is not completely taken away.
(v) Though Order 8 Rule 1 CPC 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 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 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 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."
8. We are satisfied that in the circumstances of this case, the High Court ought to have permitted the appellant to file written statement, beyond the period prescribed in Order 8 Rule 1 CPC, given the facts and circumstances of this case." 5
The decision relied on by the learned advocate for the opposite parties in support of his contention that the Court does not have any power to extend the period for filing a written statement does not apply in this case, inasmuch as, the same has been delivered in respect to commercial suits. The amendment to Order 8 Rule 10 as relied upon by the opposite parties also applies to commercial suits. The order impugned is set aside. The revisional application is allowed.
There shall be no order as to costs.
The learned Court below is directed to accept the written statement of the defendants on the next date when the suit has been fixed for hearing. The suit will proceed upon acceptance of the written statement and in accordance with law. The written statement will be accepted upon payment of cost of Rs.1000/- to either the plaintiffs or to the learned advocate for the plaintiffs, receipt whereof will be filed in the Court below.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible subject to compliance of all usual formalities.
(Shampa Sarkar, J.)