Karnataka High Court
Liyakhath Ali vs H.N. Lohitheshwar on 26 February, 2004
Equivalent citations: AIR2004KANT271, 2004(4)KARLJ57, AIR 2004 KARNATAKA 271, 2004 AIR - KANT. H. C. R. 1218, (2004) 3 KCCR 1575, (2004) 4 KANT LJ 57, (2004) 16 INDLD 562
Author: H.L. Dattu
Bench: H.L. Dattu
ORDER H.L. Dattu, J.
1. By my order dated 25-2-2004, I had allowed the writ petition and had directed the learned trial Judge to accept the written statement filed by the defendant, though belatedly, and to proceed with the suit. This was in the forenoon session.
2. In the afternoon session, one of the learned counsels appearing for the respondent in some other case did bring to my notice the observations made by the Apex Court in the case of Dr. J.J. Merchant v. Shrinath Chaturvedi and contended that the defendant before the trial Court is expected to file the written statement within the time prescribed under the provisions of Order 8, Rule 1 of the Code of Civil Procedure (amended provisions). Having gone through the decision, I was of the view that I might have committed a mistake in the morning session while allowing the writ petition. Therefore, I had directed the registry to post this matter for 'Being Spoken To' on 26-2-2004 to hear the learned counsel for the parties to the lis once over again.
3. At this stage itself, I should notice that similar matters were posted before me on earlier occasions also. In fact, I had allowed the writ petitions condoning the delay in filing the written statements and then had directed the learned trial Judges to accept the written statements and to proceed with the suit. In some cases, the learned counsels appearing for the respondents themselves had agreed for disposal of the writ petitions and to direct the trial Court to permit the defendants to file their written statements. In some cases, the delay in filing the written statement was just three (3) to ten (10) days, and therefore, in the ends of justice, I had thought that the defendants should be allowed to file their written statements and to participate in the proceedings before the trial Court.
4. Since I had not signed the order in the present writ petition, I thought it would be proper to re-hear the learned counsels for the parties in view of the observations made by the Apex Court in Dr. J.J. Merchant's case .
5. Before I notice the contentions canvassed by Sri S. P. Shankar, learned senior counsel appearing for the petitioner, let me briefly notice the fact situation in the writ petition :
Defendant's writ petition before this Court inter alia calling in question the correctness or otherwise of the orders made by the trial Court on I.A. Nos. 1 and 2 file for recalling the order dated 30-10-2002 and for condonation of delay in filing the written statement.
6. Plaintiff's suit before the trial Court is for recovery of possession of suit schedule property from the defendant. Suit summons was served on the defendant. The date fixed for first appearance was on 10-10-2002. On that day, the defendant appeared before the trial Court and requested for time to file the written statement. The request was acceded to by the learned trial Judge and the matter was adjourned to 30-10-2002.
7. On 30-10-2002, plaintiff and defendant and their learned counsels were not present before the Court and since written statement was not filed within 30 days, the trial Court adjourned the case for recording of the evidence of the plaintiff : The order made by the trial Court on 30-10-2002 reads as under :
"No representation. Written statement not filed within 30 days. Plaintiffs evidence by 28-11-2002."
8. Since plaintiff was not present before the Court on 28-11-2002, the suit came to be adjourned for plaintiff's evidence finally by 2-1-2003.
9. On 2-1-2003, the defendant filed two applications before the trial Court under Section 151 of Code of Civil Procedure. First application (I.A. No. 1) was to set aside the orders made by the trial Court on 30-10-2002 and the second application (I.A.No. 2) seeking permission of the Court to file the written statement along with the verifying affidavit and list with nine (9) documents.
10. The trial Court had adjourned the proceedings to 21-1-2003 to facilitate the plaintiff to file his objections, if any, to I.A. Nos. 1 and 2.
11. On 21-1-2003, the Advocate for plaintiff had submitted before the trial Court that he had no objection whatsoever for allowing the prayers made in both the applications (I.A.Nos. 1 and 2). But, the trial Court was of the view that since the application and the written statement is filed beyond ninety (90) days, the applications filed by defendants requires to be heard on merits.
12. After hearing the learned counsels for the parties to the lis, on 26-6-200.3, the learned trial Judge has rejected both the applications (I.A. Nos. 1 and 2) filed by the defendant. It is the correctness or otherwise of the aforesaid order made by the learned trial Judge on those two applications (I.A. Nos. 1 and 2) is the subject-matter of this writ petition before this Court.
13. Sri S, P. Shanker, learned senior counsel appearing for the petitioner contends before this Court that the learned trial Judge was not justified in rejecting the applications (I.A.Nos. 1 and 2) filed by the petitioner, one for recalling the orders dated 30-10-2002 and another for condonation of delay in filing the written statement on the ground, that Order 8, Rule 1 of the Code of Civil Procedure (amended provision) is only a procedural provision and that procedural provision should be liberally construed and in the ends of justice, parties should be allowed to file their written statement in support of their case. In support of his submission, the learned Senior Counsel has brought to my notice the observations made by the Apex Court in the case of Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, . In the said decision, the Apex Court has observed as under :
"Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting malafide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side."
14. The learned Senior Counsel also brings to my notice the observations made by the Apex Court in the case of Owners and Parties interested in M.V. "Vali Pero" v. Fernandeo Lopez, . The learned Senior Counsel invites my attention to paragraph 18 of the said judgment. In that, the Apex Court has stated as under :
"18. Rules of procedure are not by themselves an end but the means to achieve the ends of justice. Rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice. Construction of a rule of procedure, which promotes justice and prevents its miscarriage by enabling the Court to do justice in myriad situations, all of which cannot be envisaged, acting within the limits of the permissible construction, must be preferred to that which is rigid and negatives the cause of justice. The reason is obvious. Procedure is meant to subserve and not rule the cause of justice. Where the outcome and fairness of the procedure adopted is not doubted and the essentials of the prescribed procedure have been followed, there is no reason to discard the result simply because certain details which have not prejudicially affected the result have been inadvertently omitted in a particular case. In our view, this appears to be the pragmatic approach, which needs to be adopted while construing a purely procedural provision. Otherwise, rules of procedure will become the mistress instead of remaining the handmaid of justice, contrary to the role attributed to it in our legal system."
15. The learned Senior Counsel also invites my attention to Section 148 of the Code of Civil Procedure, to contend that the trial Court has the discretion to extend the time prescribed under Order 8, Rule 1 of the Code of Civil Procedure.
16. The learned Senior Counsel then contends that the observations made by the Apex Court in Dr. J.J. Merchant's case ) was with reference to Section 13 of the Consumer Protection Act, 1986 ("the Act" for short), and therefore, the observations made by the Apex Court in the said decision may not be applicable while considering the provisions of Order 8, Rule 1 of the Code of Civil Procedure (amended provisions). The learned Senior Counsel also brings to my notice the observations made by the Apex Court in the case of Topline Shoes Ltd. v. Corporation Bank and in particular to the observations at Head Note 'B.' In that, the Apex Court has stated as under :
"The appellant filed a complaint before the Gujarat State Commission, claiming compensation against the respondent on account of the respondent's failure to advance loan to the appellant despite furnishing security for the same. On 22-2-2000, the respondent received from the State Commission a notice according to which 4-4-2000 was the date fixed before the Commission. On 4-4-2000, at the request of the respondent the case was adjourned to 4-5-2000. On 4-5-2000, the respondent filed its reply and later, the appellant filed a rejoinder. On the next date, viz., 24-7-2000, the appellant unsuccessfully sought the State Commission not to accept the respondent's reply and also to return the appellant's rejoinder on the ground that the respondent's reply was beyond the time limit of 45 days provided in Section 13(2)(a) of the Consumer Protection Act, 1986. The National Commission dismissed the appellant's revision. Before the Supreme Court, the appellant contended that the State Commission had no power to accept a reply filed beyond a total period of 45 days prescribed by Section 13(2)(a). The appellant further submitted that the discretion vested in the Forum/Commission to extend the time cannot be exercised from time to time as held by the State Commission."
17. Then the learned Senior Counsel would contend that Order 8, Rule 6(a) of the Code of Civil Procedure provides for filing counter-claim before the trial Court and then contends that the counter-claim needs to be filed along the written statement. The learned Senior Counsel further submits that the filing of counter-claims runs with right of filing of written statement and if no prejudice is going to be caused to the other side, though such counter-claims are made belatedly, the same requires to be accepted and if that is permissible under law, the written statement if filed though beyond the time prescribed under the provisions of Code of Civil Procedure requires to be accepted by the Civil Courts.
18. The sum and substance of the contentions canvassed by the learned Senior Counsel for petitioner is that since Order 8, Rule 1 of the Code of Civil Procedure (amended provisions) is only a procedural provision, the trial Court has the discretion to condone the delay, if any, in filing the written statement in the ends of justice. The learned Senior Counsel emphasised that this Court requires to keep that aspect of the matter in view while answering the issue raised in this writ petition.
19. In my opinion, there would not have been any difficulty for me in accepting the submissions made by Sri S.P. Shankar, learned Senior Counsel, especially in a matter of this nature where there is failure to file the written statement within a reasonable time, if it could be demonstrated that the party applying was not acting malafide and that by his blunder, he has not caused injury to his opponent, which may be compensated by an order of costs in view of the observations made by the Apex Court in Jai Jai Ram Manohar Lal's case and Vali Pero's case , if not for the source of information and guidance by the pronouncement of Apex Court in the case of Dr. J.J. Merchant's case .
20. In Dr. J.J. Merchant's case , the Apex Court was considering the submission that complication questions of facts cannot be decided in summary proceedings and in the summary trial, justice cannot be done when some questions of facts are required to be dealt with or decided. While rejecting the submission made, the Apex Court was pleased to observe that Consumer Protection Act provides for sufficient safe-guards and further the Court has elaborately dealt with the procedure prescribed under the Act for the disposal of the complaint. Then the Court has referred to Sub-section (1) of Section 13 of the Act, which provided for time limit within which the opposite party has to file his version after a reference is made to him by the District Forum on the complaint filed by the complainant. The Legislature has also vested the District Forum the same powers as are vested in a Civil Court under the Code of Civil Procedure while trying a suit in respect of summoning and enforcing attendance of any defendant, the discovery and production of documents, etc. After referring the provisions of Sub-sections (1) to (4) of Section 13 of the Act, the Apex Court observes :
"From the aforesaid section, it is apparent that on receipt of the complaint, the opposite party is required to be given notice directing him to give his version of the case within a period of 30 days or such extended period not exceeding 15 days as may be granted by the District Forum or the Commission. For having speedy trial, this legislative mandate of not giving more than 45 days in submitting the written statement on the version of the case is required to be adhered to. If this is not adhered to, the legislative mandate is disposing of the cases within three or five months would be defeated."
All this discussion of the Apex Court was to impress the purpose and object of enacting Consumer Protection Act by the Legislature.
21. The Apex Court does not stop there. It refers to the amendment brought into the provisions of Order 8, Rule 1 of the Code of Civil Procedure to suggest that the Parliament has amended the aforesaid provisions in order to provide speedy disposal of cases before the trial Courts and put an end to long drawn delayed procedure and thereby giving ample opportunity to the litigant to harass the other party/a litigant, who has approached the Court for certain reliefs. The Apex Court extracts the amended provisions of Order 8, Rule 1 of the Code of Civil Procedure and then observes :
"Under this Rule also, there is a legislative mandate that written statement of defence is to be filed within 30 days. However, if there is a failure to file such written statement within the stipulated time, the Court can at the most extend further period of 60 days and no more."
22. The observations made by the Apex Court in the aforesaid decision, in my opinion, is not a passing observation. In fact, the Supreme Court while analysing the provision of Section 13 of the Consumer Protection Act, 1986 and the procedure that requires to be followed by the Consumer Protection Forum, has referred to the provisions of the Code of Civil Procedure and then has referred to as I have already noticed, the amended provisions of Order 8, Rule 1 of the Code of the Civil Procedure and thereafter has observed that the legislative intent is to give only ninety (90) days time to the defendant for filing his written statement after service of suit summons. The Apex Court in Dr. Karan Singh's case (1993) 200 ITR 614 : (1993 AIR SCW 790) has observed that the basic rules of interpreting Court judgments are the same as those of construing other documents. The principle is that, if the language in a Judgment is plain and unambiguous and can be reasonably interpreted in only one way, it has to be understood in that sense, and any involved principle of artificial construction has to be avoided.
23. At the same time, it is neither desirable nor permissible to pick out a word or sentence from the judgment and treat it to be the law as declared by the Apex Court in the case of CIT v. Sun Engineering Works (P) Ltd., AIR 1993 SC 43, [ 1992 ] 198 ITR 297 ( SC ). In the said decision, the Apex Court has stated as under :
"It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete "law" declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions, which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and, while applying the decision to a later case, the Courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under considerations by this Court, to support their reasonings."
24. The Apex Court, while construing the provisions of Order 8, Rule 1 of the Code of Civil Procedure has observed that there is a legislative mandate that the written statement of defence is to be filed within 30 days from the date of service of suit summons and if there is failure to file such written statement within the stipulated time, the Court can at the most can extend further period of 60 days and no more. If the opinion is expressed by the Supreme Court on the interpretation of a section after consideration and such opinion is advisedly and deliberately given, that opinion would be binding on this Court under Article 141 of the Constitution. Accordingly, the decision of the Supreme Court requires to be followed.
25. Keeping in view the law declared by the Apex Court in Dr. J.J. Merchant's case , let me consider the impugned orders made by the learned trial Judge.
The learned trial Judge in his order observes that written statement filed by the defendant is beyond the time prescribed under Order 8, Rule 1 of Code of Civil Procedure and, therefore, rejects not only the application filed for condonation of delay in filing the written statement and further refuse to take on record the written statement filed by the defendant. Since the order made by the learned trial Judge is in accordance with the mandate of the law declared by the Apex Court in Dr. J.J. Merchant's case , I do not think that the learned trial Judge has committed any mistake or error or illegality which calls for my interference in exercise of my supervisory jurisdiction under Article 227 of the Constitution.
26. In view of the above, the following :
ORDER Writ petition fails. Accordingly, it is rejected. Ordered accordingly.