Rajasthan High Court - Jaipur
Shiv Ram Singh vs Sh. Mahendra Chand Chordia And Ors. on 12 May, 2004
Equivalent citations: RLW2004(3)RAJ1942, 2004(3)WLC308
Author: K.S. Rathore
Bench: K.S. Rathore
JUDGMENT K.S. Rathore, J.
1. Since these three writ petition involve common question of law and at the request of learned counsel for the parties, these three writ petitions are finally heard at this stage and being decided by this common order. The facts of Shiv Ram Singh's case (SBCWP No. 188/2004) are being taken as a leading case.
2. The respondent No. 1 filed a civil suit No. 212/2002 before the Court of Additional District Judge No. 5, Jaipur City, Jaipur in which notices were issued to the defendants. The petitioner- defendant was served with the notice on 10.3.2003. The petitioner appeared before the Court on 20.3.2003 and the matter was posted on 31.3.2003. Again the matter was fixed on 30.4.2003 for filing the written statement. On that date, the petitioner defendant was not able to file written statement. Another opportunity was granted to the petitioner-defendant for filing written statement on the cost of Rs. 100/- and the matter was posted on 21.5.2003.
3. On 21.5.2003, due to transfer of Presiding Officer, the matter was adjourned to 22.7.2003. In the meantime, the plaintiff moved an applications under Order 8 Rule 10 and under Section 10 of CPC praying to struck the defence of the defendant-petitioner. On 22.7.2003, the matter was posted for 11.8.2003 for filing reply to the applications.
4. The petitioner-plaintiff filed the written statement on 11.8.2003. On 21.11.2003, the Trial Court declined to take the written statement filed by the petitioner-plaintiff and application under Order 8 Rule 10 filed by the plaintiff was party allowed to cross examine the witnesses of the plaintiff and defendant.
5. Learned counsel for the petitioner challenged the impugned order mainly on the ground that the summon was issued to the petitioner on 10.3.2003 and the petitioner put his appearance on 14.3.2003. The written statement was filed before the Trial Court on 11.8.2003 within a period of 154 days and under Order 5 Rule 1 and Order 8 Rule 1 CPC as the period of 90 days was permissible for filing of written statement and under Section 148 CPC by passing proper order, the court could have further extended the above period by 30 days, on deducting this total period of 120 day, there was only a delay of just 34 days in filing the written statement by the petitioner-defendant and the same had been filed on 11.8.2003.
6. The petitioner also referred the provisions of Section 148 and amended provisions of Order 8 Rule 1 of CPC. Whether these provision are mandatory or director, learned counsel placed reliance on the judgment in 2002 (6) SCC 33 (1), wherein Hon'ble Supreme Court dealing with the provisions of Section 13(2)(a) of Consumer Protection Act has held as under :.-
"Time frame provided under Section 13(2)(a) - Not mandatory-Reply filed beyond 45 days-Cannot be said to be debarred from being taken on record in any circumstances - Power to extend time - Is with rider of 15 days - Cannot be exercised repeatedly unmindful of the rider."
7. With regard to acceptance of the written statement beyond the period of 90 days prescribed under the amended provisions of Order 8 Rule 1 of CPC, learned counsel for the petitioner placed on the judgments in 2003 (3) M.P.L.J. 506 (2), AIR 2003 Karnataka 345 (3), AIR 2003 Delhi 280 (4), 2003 (3) RLR 756 (5), 2003 (3) RLR 859 (6), & 2003 (3) RLR 860 (7).
8. Learned counsel for the petitioner also made the submission with regard to amendment in CPC made effective and referred a judgment in 2003 (6) SCC 675 (8), with regard to power and jurisdiction of the High Court under Article 226 & 227.
9. Per contra, learned counsel for the respondents submitted that ample opportunities have been given to the petitioner to file the written statement, but he failed to submit the written statement within time, even the liberty was given at the cost of Rs. 100/-.
10. Mr. S. Kasliwal, learned counsel for the respondents also referred the provisions of CPC and submits that admittedly, the written statement has been filed after expiry of prescribed period of 90 days. As per the judgments of the Hon'ble Supreme Court and High Court, the court if found that the defendant has not deliberately delayed filing of written statement, but precluded to file the same for bonafide reason, can only extend 30 days. The present case is not such a case where time for filing written statement is required to be extended.
11. With regard to the judgment in case of Topline Shoes Ltd. (supra), Mr. S. Kasliwal submits that the aforesaid judgment is not applicable to the present case as this judgment relates to Consumer Protection Act. Mr. S. Kasliwal placed reliance on the judgment rendered in case of Nasiruddin and Ors. v. Sita Ram Agarwal (9), wherein the Hon'ble Supreme Court while dealing with the provisions of Rent Control Act has held that limitation prescribed for filing of written statement is mandatory.
12. Mr. S. Kasliwal also placed reliance on the judgment in AIR 2003 Karnataka 426 (10), wherein the defendant failed to file written statement within 30 days under amended Rule 1 and it was held that time cannot be extended under Order 8 Rule 9 as filing of written statement is governed exclusively by Order 8 Rule 1.
13. Heard submissions made on behalf of the respective parties and carefully perused the relevant provisions of CPC and the judgments referred before me by the parties.
14. In the present case, notice was served upon the petitioner on 10.3.2003 and his counsel put appearance before the Court on 20.3.2003. From 20.3.2003 to 11.8.2003, the petitioner utterly failed to file the written statement evenafter the opportunity was afforded on the case of Rs. 100/-. This act of the petitioner shows that without assigning bonafide reason which preclude him to file written statement, the petitioner avoided to file the written statement upto 11.8.2003.
15. In case of Topline Shoes Ltd. (supra), the Hon'ble Supreme Court while dealing with the provisions of Section 13(2)(a) of Consumer Protection Act observed that time frame provided under Section 13(2)(a) is not mandatory. The reply filed beyond 45 days cannot be said to be debarred from being taken on record in any circumstances, the power to extend time is with rider of 15 days and cannot be exercised repeatedly unmindful of the rider. The provisions is more by way of procedure to achieve the object of speedy disposal of such disputes. It is an expression of "desirability" in strong terms. But it falls short of creating of any kind of substantive right in favour of the complainant by reason of which the respondent may be debarred from placing his version in defence in any circumstances whatsoever. It was further observed that extended time may not exceed 15 days is held to be directory in nature, it does not mean that the order extending time to file reply may be repeatedly passed unmindful of and totally disregarding the provision meaning thereby the petitioner defendant has to show the bonafide reason which preclude him to file the written statement and in such eventuality, this Court cannot extend the time which may not beyond 30 days. Admittedly, in the instant case, the written statement has been filed after 154 days and the petitioner is not able to show the bonafide reasons, but exercised his discretion to extend the time limit.
16. I have also perused the judgment rendered by the Karnataka High Court in case of Prasanna Parvathamba (supra), wherein the Karnataka High Court while dealing with the provisions of CPC has held that defendant has to give compelling reasons for not being able to file written statement within time. Here in the instant case, the petitioner failed to give any reason and is not able to show that what compelling reasons prevented the petitioner defendant to file the written statement, therefore, the ratio decided by this judgment is not applicable to the instant case.
17. The judgment referred by the petitioner rendered in case of Vinod Pareek (supra), is also not applicable as the suit was filed by the respondent-plaintiff on 26.10.2002 and the amended act came into force w.e.f. 1.7.2002, therefore, the provisions of amended CPC is applicable.
18. I have also perused the judgment of the Delhi High Court in case of Dr. Sukhdev Singh wherein the delay in filing the written statement on account of settlement of difference and it was held that it is a case where court ought to exercise its inherent power to extend time for filing written statement. As already discussed hereinabove, the petitioner has utterly failed to show the reason which precluded him from filing the written statement well within the prescribed time.
19. In view of the aforesaid discussion, this Court does not want to interfere whatsoever in the impugned order dated 21.11.2003 passed by the Trial Court as the petitioner is not able to make out any bonafide reason for not filing the written statement within prescribed time. Consequently, the writ petition fails and the same is hereby dismissed.