Patna High Court
Smt. Sunita Devi And Ors. vs Abdhesh Kumar Sinha Alias Kamleshwari ... on 5 April, 2005
Equivalent citations: AIR2005PAT136, AIR 2005 PATNA 136, (2005) 31 ALLINDCAS 799 (PAT), 2005 (31) ALLINDCAS 799, (2005) 2 BLJ 695, (2005) 2 PAT LJR 482
ORDER S.N. Hussain, J.
1. Heard learned counsel for the parties. The petitioners are defendants 1st set in Title Suit No. 87 of 2004, which was filed by plaintiffs-opposite party Nos. 1 and 2 for declaration of their title and also for declaration that the defendants -petitioners did not acquire any title in the suit land on the basis of sale deed dated 25-1-2004 executed by opposite party Nos. 3 and 4 (defendants 2nd set) in favour of these petitioners.
2. The petitioners have challenged the impugned order dated 21-12-2004 passed in the aforesaid suit, by which the learned Sub-Judge-III, Patna City, had rejected their petition for accepting written statement filed on their behalf in the Court below on 15-10-2004, beyond the period of ninety days as prescribed under Rule 1 of Order VIII of the Code of Civil Procedure (hereinafter referred to as 'the Code' for the sake of brevity).
3. The short fact of this case is that the above mentioned title suit was filed by opposite party Nos. 1 and 2 in the year 2004, whereafter notices and summons were issued to the defendants including the petitioners which were served on 10 6-2004 by hanging the copies of the summons on the door of their house and immediately thereafter they appeared in the suit on 15-6-2004. On the next date i.e. 5-7-2004 the defendants-petitioners filed a time petition for filing their written statement which was allowed and thereafter on 13-7-2004 also a similar petition was filed and time was again granted to the defendants-petitioners for filing their written statement. Thereafter, injunction petition filed by the plaintiffs was considered arid the same was disposed of on 21-9-2004, whereafter the next date 14-10-2004 was fixed for filing written statement by the defendants. On 14-10-2004 also no written statement was filed and the matter was taken up for hearing under Order VIII Rule 10 of the Code and ultimately on 15-10-2004 the defendants petitioners filed their written statement.
4. The learned Court below rejected the said written statement on the ground that summons were served on 10-6-2004, hence the filing of the written statement on 15-10-2004 was beyond the period of ninety days as prescribed under the provision of Order VIII Rule 1 of the Code. The learned Court below held that when the written statement is not filed within thirty days from the date of service of summons on the defendants, the trial Court may extend the time for filing the written statement for reasons to be recorded in writing but it shall not be later than ninety days from the date of service of summons, as per the provision of Order VIII Rule 1 of the Code.
5. It is an admitted fact that the written statement was filed by the defendants petitioners 36 days beyond the expiry of the period of 90 days as prescribed Under Order VIII Rule 1 of the Code. The issues have not yet been framed in the suit, which is only about a year old, and prima facie the defendants-petitioners appear to have shown some reasons giving sufficient grounds for the said delay, but here the question in issue is whether the trial court, can accept the written statement filed beyond the aforesaid prescribed period of ninety days from the date of service of summons. In my view this is not a question of limitation, rather it is a question of jurisdiction as to whether the Court has the jurisdiction to pass orders for proper adjudication of the issues involved in the suit by way of accepting the pleadings of the defendants after the period fixed, specially when they had been able to show exceptional and genuine circumstances for the said delay and also when by exercising the said jurisdiction neither the other side is put to any loss nor any delay is caused to the suit.
6. Before the Code of Civil Procedure (Amendment) Act 1999 (Act 46 of 1999) and the Code of Civil Procedure (Amendment) Act 2002 (Act 22 of 2002) the provision of Rule 1 of Order VIII in the Code of 1908 was as follows :
Rule 1 : "Written statement.-- (1) The defendant shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence."
But by the Code of Civil Procedure (Amendment) Act 2002 (Act 22 of 2002), which was brought into existence with effect from 1st of July, 2002 the following provision was substituted as Rule 1 of Order VIII of the Code :
Rule 1 : "Written statement.-- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons."
It may be further pointed out that the provisions of Rules 9 and 10 of Order VIII of the Code were exactly the same prior to 1999 but by the Amending Act of 1999 they were omitted and were reintroduced by the Amending Act of 2002. This hardly made any difference as both the said Amending Acts were to come into existence with effect from Ist of July 2002. The said Rules of Order VIII of the Code are as follows :
Rule 9 : "Subsequent pleadings.-- No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same."
Rule 10: "Procedure when party fails to present written statement called for by Court. Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up."
7. The learned counsel for the plaintiff-opposite parties has relied upon a decision of the Hon'ble Apex Court in the case of Dr. J. J. Merchant v. Shrinath Chaturvedi reported in AIR 2002 SC 2931 : (2002) 6 SCC 635 and a decision of Division Bench of the Hon'ble Karnataka High Court in the case of A. Sathyapal v. Smt. Yasmin Banu Ansari reported in AIR 2004 Karnataka 246 and also on a decision of an Hon'ble Single Judge of the Jharkhand High Court in the case of Pitambar Singh Manki alias Pitambar Singh v. Makar Singh reported in 2004 (1) JCR 601 : (2001 AIR Jhar HCR 568) and stated that after the expiry of 90 days from the date of service of summons the defendants are debarred from filing written statement and the trial Court had no jurisdiction to accept their written statement as per the specific provision of Order VIII Rule 1 of the Code.
8. The relevant portions of the decision of the Hon'ble Supreme Court are as follows :
"14. For this purpose, even the Parliament has amended Order VIII Rule 1 of Code of Civil Procedure, which reads thus :--
"Rule 1 : Written statement.-- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence :
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons."
"15. 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 stipulated time, the Court can at the most extend further period of 60 days and no more. Under the act, the legislative intent is not to give 90 days of time but only maximum 45 days for filing the version by the opposite party. Therefore, the aforesaid mandate is required to be strictly adhered to."
9. The relevant portions of the decision of the Hon'ble Karnataka High Court reported in AIR 2004 Karnataka 246 are as follows : .
"28. It is therefore evident that the Civil Procedure Code Amendment Act of 2002 was intended to among others deal with the mischief flowing from an unhindered right of the defendant to file his written statement without any limitations as to the time within which he could do so. The amended provision of Order VIII, Rule 1 of the CPC effectively deals with the cause of delay in disposal of cases arising out of the unamended provision. That being so, any interpretation of Order VIII, Rule 1 of-the CPC which may remove the legal barrier of a time frame for filing of the written statement Would result in the unamended provision re-emerging and as a consequence the mischief sought to be remedied reappearing. If the amended provision of Order VIII, Rule 1 of the CPC are also interpreted to mean that there is no real obligation for the defendant to file a written statement within 30 days or the extended period of 90 days from the date of service of the summons, it would have the effect of defeating the legislative intent of expediting the trial of suits by stipulating that the defendant must file a written statement within the period prescribed for the same."
"29. The use of negative words in the proviso to Rule 1 of Order VIII is also fairly significant. Crawford has summed up the legal position regarding use of negative words in statutes in the following paragraph: "Prohibitive or negative words can rarely, if ever, be directory, or, as it has been aptly stated, there is but one way to obey the command "thou shall not", and that is to completely refrain from doing the forbidden act. And this is so, even though the statute provides no penalty for disobedience. Accordingly, negative, prohibitory and exclusive words is to be mandatory, but their absence does not, of itself conclusively indicate a legislative intention that the statute is permissive, for affirmative words may imply a negative, although of course, their absence is a circumstance to be considered. Nevertheless, where affirmative words are used, if a negative is neither expressed or implied, the statute is merely directory."
10. The relevant portions of the decision of the Hon'ble Jharkhand High Court reported in 2004 (1) JCR 601 : (2004 AIR Jhar HCR 568 Para 7) are as follows :
"4. In my view. Section 16(1) of the (Bihar) Amendment Act 2002 clearly provided that except in so far as such amendments of provisions are consistent with the Principal Act as amended by this Act (Central Act 22 of 2002) all other amendments or provisions inserted by the Principal Act by a State Legislature or High Court the commencement of this Act (Central Act 22 of 2002) stood repealed and, therefore, the aforesaid Bihar Amendment to rule 1 of Order VIII made before the commencement of this Act (Central Act 22 of 2002), being not consistent with the Principal Act as amended by this Act (Central Act 22 of 2002), stood repealed."
11. The Hon'ble Supreme court in the aforesaid case of Dr. J. J. Merchant ( (supra) was considering the provisions of the Consumer Protection Act (68 of 1986) and had only made a passing reference to the provisions of Order VIII Rule 1 of the Code stating that under the said provision there is a legislative mandate that after the prescribed period of thirty days from the date of receipt of summons the Court can at most extend further period up to sixty days. The Hon'ble Supreme Court merely mentioned the general principles prescribed in said rule, but since the matter in issue was another Act, namely, Consumer Protection Act, the Hon'ble Court did not go into the detail about the provisions of the Code as to the jurisdiction of the Court beyond the said total period of ninety days, specially in exceptional and extremely genuine cases, where the cause of justice is at stake.
12. So far the Division Bench judgment of the Hon'ble Karnataka High Court in the case of A. Sathyapal (supra) is concerned, the learned counsel for the petitioners has submitted that it is based upon the above mentioned decision of the Hon'ble Supreme Court in the case of Dr. J. J. Merchant (supra) without considering the aforesaid aspect of the matter and also without considering the other decision of the Hon'ble Supreme Court in the case of Topline Shoes Ltd. v. Corporation Bank reported in AIR 2002 SC 2487, in which the guideline with respect to the aforesaid aspect of the matter has been fully considered and decided as follows :
"6. We may peruse the relevant provisions of S. 13 of the Consumer Protection Act, 1986. It reads as under :
"Section 13 ... subsection(2) ... (a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District . forum : .
(b) where the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits, or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute,--
(i) on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint, or
(ii) on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum".
"8. ...Thus the intention to provide a time frame to file reply, is really meant to expedite the hearing of such matters and to avoid unnecessary adjournments to linger on the proceedings on the pretext of filing reply. The provision however, as framed, does not indicate that it is mandatory in nature. In case the extended time exceeds 15 days, no penal consequences are prescribed therefor. The period of extension of time "not exceeding 15 days", does not prescribe any kind of period of limitation. The provision appears to be directory in nature, which the Consumer Forums are ordinarily supposed to apply, in the proceedings before them. We do not find force in the submission made by the appellant, in person, that in no event, whatsoever, the reply of the respondent could be taken on record beyond the period of 45 days. The provision 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 is for the Forum or the Commission to consider all facts and circumstances along with the provisions of the Act providing time frame to file reply, as a guideline, and then to exercise its discretion as best it may serve the ends of justice and achieve the object of speedy disposal of such cases keeping in mind principles of natural justice as well....
13. So far the single Judge judgment of the Hon'ble Jharkhand High Court in the case of Pitambar Singh Manki (2004 AIR -- Jhar HCR 568) (supra) is concerned, it is only with respect to the effect of earlier State Amendment upon the subsequent Central Amending Act of 2002, holding that by coming into force the Amending Act of 2002, all other earlier State amendments stood repealed. Hence the said case was with respect to a completely different issue.
14. Learned counsel for one or the other party to this revision have also relied upon a decision of the Hon'ble Apex Court in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, and also upon another decision of the Hon'ble Allahabad High Court in the case of Waqf Mausooma Syed Husain and Mst. Wall Begum v. Dillep Kumar Jain, , but in my view both the said decisions are not applicable to the facts and circumstances of this case as in the former it is held that there was no constitutional infirmity in the amendments in the Code made in the years 1999 and 2002, whereas in the latter it is held that Amending Act 2002 was not applicable to the suits filed prior to the coming into force of those amendments. These questions are not in issue here as neither the vires of the said Amending Acts have been challenged nor the suit out of which this revision has arisen was filed prior to the Amending Act 2002.
15. However, with regard to the amended provision of Rule 1 of Order VIII of the Code, two expressions used therein, namely, 'shall' and 'not later than ninety days' have to be considered. It is a well settled principle of law that where 'May' and 'Shall' both are used in the same provision. It will be mandatory where 'Shall' is used and it will be directory where 'May' is used as has been made clear by Maxwell on Interpretation of Statute (12th Edition) at page 282. But even then the Courts can still ascertain the real intention of the Legislature as has been held by the Hon'ble Apex court in the case' of Govind Lal Chaggan Lal Patel v. The Agriculture Produce Market Committee, , which relied upon the following passage of Crawford on 'Statutory' Construction' (Edn. 1940, Art. 261, Page 516);
"The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other."
16. Furthermore in the Presidential Election Case reported in AIR 1974 SC 1682, the Hon'ble Chief Justice of the Apex Court speaking on behalf of a seven-Judge Bench had specifically held as follows (Para 13) :
"In determining the question whether a provision is mandatory or directory, the subject-matter, the importance of the provision, the relation of that provision to the general object intended to be secured by the Act will decide whether the provision is directory or mandatory. It is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. 'The key to the opening of every law is the reason and spirit of the law, it is the animus impotents, the intention of the law maker expressed in the law itself, taken as a whole."
17. From the aforesaid settled principles of law as well as from a plethora of other judgments of the Hon'ble Supreme Court, it is quite apparent that under certain circumstances 'Shall' can be construed as 'May' but ordinarily the Courts should consider it mandatory unless that interpretation leads to some absurd inconvenient consequences or is at variance with the intent of the Legislature to be collected from other part of the Act or is bound to cause failure of justice. Applying this well recognised canon of construction, the Hon'ble Apex Court in the case of Ganesh Prasad Sah Kesari v. Lakshmi Narayan Gupta, had held that the conclusion is inescapable that the word 'Shall' used in Section 15 of the Bihar Buildings (Lease, Rent and Eviction) Control Act was directory and not mandatory and must be read as 'May' and further held as follows :
"12. Failure to comply with an earlier direction should not necessarily visit the tenant with the consequence of his defence being struck off because there might be myriad situations in which default may be committed. The Court should adopt such a construction as would not render the Court powerless in a situation in which ends of justice demand relief being granted. The High-Court has adopted such a construction which would defeat the beneficent nature of the provision. The decision of the High Court will have to be set aside because it proceeds on the basis that once there is default, the tenant must suffer the consequences of it."
18. Hence the said decisions clearly provide that the Court cannot be rendered powerless specially in a situation where ends of justice and fair play demands interference of the Court and it is the duty of the Court to always make such construction as shall suppress the mischief and advance the remedy and also to suppress subtle inventions and evasions for continuation of the mischief and 'proprivato commodo' and to add force and life to the cure and remedy according to the true intent of the makers of the Act 'pro bono publico'.
19. The cardinal principle for interpretation of law is that an enactment has to be read as a whole and only thereafter interpretation can be made Rule by Rule. One Rule or one section cannot be the guiding factor for arriving at the intendment of the Legislature. Here in the instant case the Parliament which chose to delete Rules 9 and 10 of Order VIII from the Code by the Amending Act of 1999, again decided to re-introduce them by Amending Act 22 of 2002, hence the provision of Rule 1 of Order VIII of the Code has to be considered along with Rules 9 and 10 thereof, which if read as a whole would clearly show that the Court is not completely divested of power to fix further time for filing written statement. Furthermore, there are other provisions of law in the Code such as Sections 148 and 151 which empower the Court to enlarge time and to exercise inherent jurisdiction to avoid miscarriage of justice. No doubt, such exercise must not be totally derogatory to the main provision of law.
20. Even if the said provision is assumed to be not only directory in nature and has to be observed as mandatory, but even then its non-observance in all cases should not lead to the extreme penalty of debarring the defendant and refusing to accept his written statement, which has already been filed. The object of Rules of procedure is to aid the administration of justice and not to hamper it. They are to subserve the, cause of justice and not to obstruct it. They must be construed so as to promote the cause of justice which is mainly to arrive at the truth on a consideration of pleadings and evidence of parties. These views find support from two decisions of the Division Bench of this Court in the case of Rameshwar Sharma v. Surju Prasad, reported in 1979 BBCJ 637 and in the case of Pravesh Kumari v: Rishi Prasad, reported in AIR 1986 Patna 315.
21. Similar matters had come before two Hon'ble Judges of this Court; First in the case of Ram Saran Sah v. Maheshwar Prasad Bhatar alias Maheshwar Bhatat reported in 2004 (2) Pat LJR 107 and second in the case of Md. Mostakim Mian v. Mohamad Hussain alias Mohamad Mian, reported in 2005 (1) Pat LJR 521 and in both the cases the Hon'ble Courts allowed the claim of the defendants subject to payment of cost on the basis that the provision of Rule 1 of Order VIII of the Code was a procedural law which is always Used in the aid of justice, although I find myself in agreement with the said view, but since the various decisions of the Apex Court and several High Courts do not appear to have been cited by the parties in those cases, as has been done by the parties of the instant case, it has become necessary to pass this order after clarifying all the points raised by parties on the basis of those decisions.
22. It is quite apparent that the said amendment of Rule 1 of Order VIII, CPC has been brought to cut short delays at various levels. These salutary provisions were introduced for speedy disposal of cases in consonance with fair play and natural justice. Such procedural provisions, even if peremptory in nature, are in essence in terrorem' so that dilatory litigants might put themselves in order and avoid delay. They cannot, however, completely estop a Court from taking note of events and circumstances, which happened within the prescribed period.
23. Furthermore, the Code of Civil Procedure (Amendment) Act, 2002 (Act 22 of 2002) was brought into existence vide Notification No. S. O. 604(E), dated 6th June, . 2002 and in paragraph 2 of its 'Statement of Objects and Reasons' it is specifically mentioned that now this further amendment of the CPC was consistent with demands of fair play and justice, whereas paragraph 3(c) thereof does not mention that after ninety days the Courts were debarred from accepting the written statement of any defendant.
24. So far the question of fair play and justice is concerned, it has to be kept in mind that the Courts under the Code are Courts of equity and there can be various compelling circumstances and myriad situations in which a defendant can be completely helpless in filing written statement within ninety days from receiving summons including natural catastrophes like floods, earthquakes, devastating storms etc. and also man-made calamities such as riots etc. There can even be some very compelling personal reasons such as non-availability of any one during the period of serious ailment of the defendant or in case of serious accidents rendering him completely incapable of coming to Court and/or sending any one else to Court.
25. Furthermore, where the cause of justice is at stake the powers of the Court are very wide and cannot be limited and hence when the Court feels that there were genuine and exceptional circumstances and the cause of justice would suffer by refusing the written statement, it definitely can accept the pleading of the defendant beyond the period of ninety days prescribed in Rule 1 of Order VIII of the Code specially when by exercising the said Jurisdiction neither the other side is put to any loss nor any delay is caused to the suit.
26. I may hasten to add here, that provision of Rule 1 of Order VIII of the Code has to be strictly adhered to as the filing of the written statement within the period prescribed is the rule, whereas accepting the written statement beyond it should be an exception and is left to the Courts judicial discretion, which should be exercised with extreme caution under very exceptional and compelling circumstances only with a view to secure the demands of fair play and justice as per the 'Statement of Objects and Reasons' of the Amending Act of 2002.
27. But here by the impugned order the learned court below has rejected the written statement of the defendants-petitioners only on the ground that it was filed beyond the period of 90 days from the date of receipt of summons as prescribed in Rule 1 of Order VIII of the Code, without even considering the circumstances in which the delay was caused as well as the demand of fair play and justice to subserve the cause of full and final adjudication in accordance with law.
28. In the aforesaid circumstances, the impugned order is set aside and the matter is remitted to the Court below to decide the same afresh keeping in view the proposition of law as discussed above. Accordingly this civil revision is allowed.