Page No.# 1/7 vs Muzamil Hussain on 24 January, 2022

[Cites 10, Cited by 0]

Gauhati High Court

Page No.# 1/7 vs Muzamil Hussain on 24 January, 2022

1. Orders dated 06.07.2019 and 11.03.2020 passed by the learned Civil Judge, Sivasagar in Title Suit No. 34/2018 is challenged in this civil revision petition under Article 227 of the Constitution of India read with Section 151 of the Code of Civil Procedure. It is to be mentioned here that vide Order dated 06.07.2019, the learned Civil Judge, Sivasagar has Page No.# 3/7 rejected the Petition No. 250/2019 filed by the petitioner under Order IX Rule 7 CPC read with Section 151 CPC for vacating ex-parte order dated 11.02.2019 and vide order dated 11.03.2020, the learned Civil Judge, Sivasagar rejected the Petition No. 1867/2019 filed by the petitioner under Section 151 Cr.P.C. for vacating the ex-parte hearing in T.S. No. 34/2018.

2. The factual background leading to filing of the present petition is briefly stated as under:

The opposite party as plaintiff instituted a suit being Title Suit No. 34/2018 against the petitioner/defendant for declaration of right, confirmation of possession and perpetual injunction. The suit was fixed on 11.01.2019 for filing written statement and the learned counsel of the defendants filed hazira and told the Shriestadar for filing the same in late hours but the learned Court below at about 12.35 PM passed the order for ex-parte hearing. Then the counsel for the petitioner filed one petition for setting aside the ex-parte order dated 11.02.2019 being Petition No. 250/2019 on the same day late hours along with Petition No. 251/2019 under Order VII Rule 10 & 10-A, read with Section 151 CPC and written statement and counter claim and the opposite-party/defendant even after receiving copies of Petition No. 250/2019 dated 11.02.2019 along with Petition No. 251/2019, written statement and counter claim did not file any objection under the petition. The opposite-party, on 24.04.2019, filed a petition for amendment of his plaint and the petitioners/defendants have filed objection on 18.06.2019. The learned Court below, on 06.07.2019, rejecting the adjournment petition of the petitioners, finding absence of the counsel and dismissed the Petition No. 250/2019, holding that the petitioners/defendants have not stated sufficient cause of not filing the written statement within statutory period and rejected the same. But, allowed the Petition No. 811/2019, of the plaintiff/opposite-party for amendment of the plaint without considering the objection. The petitioners on 16.08.2019 also filed a Petition No. 1867/2019 under Section 151 stating all the facts and made prayer to accept the written statement and this time also the opposite-party filed objection on 25.10.2019 stating that W.S could not be filed within the statutory period and, vide Order dated 11.03.2020, the learned Civil Judge, Sivasagar rejected the petition by holding that the petition under Order IX Rule 7 of CPC, once rejected, hence subsequent petition under Section 151 CPC is rejected.

3. Heard Mr. B. Sharma, learned counsel for the petitioners. Also heard Mr. G.N. Page No.# 4/7 Sahewalla, learned Senior Counsel for the respondent.

4. Mr. B. Sharma, learned counsel for the petitioners submits that the Orders dated 06.07.2019 and 11.03.2020 passed by the learned Civil Judge, Sivasagar are not sustainable on the ground that the petitioners/defendants have submitted written statement and counter- claim on the same date i.e. 11.02.2019, fixed by the learned court below. And this fact has duly been reflected in the order dated 11.02.2019, and the learned court below has ample power to extend the date under section 148 of the Code of Civil procedure. It is further submitted that the petitioners are the cousin brothers and their acceptance of written statement is very much necessary to safeguard their interest in respect of the suit property. Mr. Sharma therefore contended to allow the petition. Mr. Sharma also relied upon one case law of Hon'ble Supreme Court in D.V. Paul Vs. Manisha Lalwani, reported in (AIR) 2010 SC 3356, in support of his submission.

5. On the other hand, Mr. G.N. Sahewalla, learned Senior Counsel appearing on behalf of the respondent submits that the petitioners have failed to show any cause for failing to submit the W.S. within the statutory period and had sufficient cause been shown, then matter would have been different. Mr. Sahewalla therefore, contended to dismiss the petition.

6. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also carefully gone through the impugned Orders dated 06.07.2019 and 11.03.2020 and also carefully gone through the case law of D.V. Paul (supra) referred by Mr. B. Sharma, learned counsel for the petitioner. At paragraph No. 26 of the said judgment Hon'ble Supreme Court has held that in so far as the first aspect is concerned Section 148 of the CPC, in our opinion, clearly reserves in favour of the Court the power to enlarge the time required for doing an act prescribed or allowed by the Code of Civil Procedure. Section 148 of the Code may at this stage be extracted as under:

"148. Enlargement of time.- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period [not exceeding 30 days in total], even though the period originally fixed or granted may be expired."

It has also been held that "A plain reading of the above would show that when any Page No.# 5/7 period of time is granted by the Court for doing any act, the Court has the discretion from time to time to enlarge such period even if the time originally fixed or granted by the Court has expired. It is evident from the language employed in the provision that the power given to the Court is discretionary and intended to be exercised only to meet the ends of justice.

In Salem Advocate Bar Association, T.N. Vs. Union of India , reported in 2005 (6) SCC 344, this Court had an occasion to examine whether the restriction placed by the amendment of Section 148 on the power of the Court to grant extension of time beyond 30 days was reasonable. This Court held that a power that is inherent in the Court to pass orders that it considers necessary for meeting the ends of justice and preventing abuse of the process of the Court cannot be taken away by putting an upper limit on the period for which an extension can be granted. Extension beyond the maximum period of 30 days was accordingly held permissible in the following words:-

"The amendment made in Section 148 affects the power of the Court to enlarge time that may have been fixed or granted by the Court for the doing of any act prescribed or allowed by the Code. The amendment provides that the period shall not exceed 30 days in total. Before amendment, there was no such restriction of time. Whether the Court has no inherent power to extend the time beyond 30 days is the question. We have no doubt that the upper limit fixed in Section 148 cannot take away the inherent power of the Court to pass orders as may be necessary for the ends of justice or to prevent abuse of process of the Court. The rigid operation of the section would lead to absurdity. Section 151 has, therefore, to be allowed to operate fully. Extension beyond maximum of 30 days, thus, can be permitted if the act could not be performed within 30 days for reasons beyond the control of the party. We are not dealing with the case where time for doing an act has been prescribed under the provisions of the Limitation Act which cannot be extended either under Section 148 or Section 151. We are dealing with a case where the time is fixed or granted by the court for performance of an act prescribed or allowed by the court."

7. The proposition of law, that can be crystallised from what has been discussed above, is that the Court has the discretion from time to time to enlarge the period counted by it, even Page No.# 6/7 if the time originally fixed or granted by the Court has expired. But the same should not exceed 30 days in total.

8. Here in this case, the petitioner has submitted the written statement and counter claim on the same day fixed by the learned Court below, but the learned Court below has rejected the same on the ground of absence of sufficient cause. But, it is submitted by the learned counsel for the petitioner and also it is apparent from the order dated 11.02.2019, that the petitioners have submitted W.S. with Counter Claim on the same date, i.e.11.02.2019, that has been fixed by the learned court below, though in the late hours, with intimation to the Sheristadar, the factum of which is not disputed by the respondent side. The learned court below has passed the order at 12.45 pm. This being the position, justice, equity and fair play demands that the W.S. and Counter Claim submitted by the petitioners ought to have been accepted by the learned court below, while it has the power to extend the time as per section 148 of the Code of Civil Procedure.

9. Moreover, in the case of Salem Advocate Bar Assn. (supra), the Supreme Court has held - that the maximum time period of 90 days for filing the written statement mentioned in Order 8 Rule 1 is only directory and not mandatory. This implies that in certain exceptional situations, the court has the power to extend the aforesaid maximum period of 90 days for the purposes of filing of the written statement by the defendant. In Kailash v. Nanhku, (2005) 4 SCC 480, Hon'ble Supreme Court held that the power of the court to extend time for filing of the written statement is not circumscribed by Order 8 Rule 1 of CPC and the proviso thereto. Recently in the case of Atcom Technologies Ltd. v. Y.A. Chunawala and Co., (2018) 6 SCC 639, Hon'ble Supreme Court has reiterated the legal principle laid down in the aforesaid case of Salem Advocate Bar Assn.(supra) that the maximum time period of 90 days for the purposes of filing of the written statement can be extended in exceptional cases.

10. In view of above discussion, this court left unimpressed by the submission of learned counsel for the respondent that that there exists no good ground to extend the time fixed by the learned court below and to accept the W.S. and Counter Claim submitted by the petitioners. While the correctness or otherwise of the impugned orders, dated 06.07.2019 and 11.03.2020 are tested on the touchstone of the legal position discussed above, and in Page No.# 7/7 the light of submissions advanced by the learned counsel of both sides, this court is of the considered opinion that the impugned orders failed to withstand the test. Accordingly, both the impugned orders same stands set aside.

11. It is provided that the learned Court below shall accept the W.S submitted and counter- claim submitted by the petitioners and thereafter, proceed to hear the matter in accordance with law.

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Gauhati High Court