Karnataka High Court
A.V. Purushotam vs N.K. Nagaraj on 5 June, 2003
Equivalent citations: AIR2003KANT417, ILR2003KAR2458, 2004(1)KARLJ635, AIR 2003 KARNATAKA 417, 2003 AIR - KANT. H. C. R. 1951, (2004) 1 KANT LJ 635, (2003) 4 CIVLJ 603, (2003) 7 INDLD 737, (2003) 4 ICC 546, (2004) 1 CIVILCOURTC 708, (2003) 4 KCCR 2470
Author: N. Kumar
Bench: N. Kumar
ORDER Kumar, J.
1. The petitioner is a tenant in respect of premises bearing No. 43/ 6 ground floor, Vth Main, Ganghinagar, Bangalore -9. The respondent who is the owner of the aforesaid premises has filed a suit SC No. 1603/2002 on the file of learned Chief Judge, Court of Small Causes, Bangalore, for ejectment of the petitioner. In the said suit, the petitioner was served with summons on 28.10.2002 and the petitioner appeared before Court and sought for time to file written statement. The matter was posted to 7.12.2002 for filing of the written statement. On that day again a request was made for extension of time for filing written statement. It was granted and the case was adjourned to 18.1.2003 for filing of the written statement. On that day, again a request was made for grant of some time to file written statement. However, the learned Judge refused to grant the time for filing written statement. But the learned Judge did not proceed to pass a judgment and decree as contemplated under Order 8 Rule 10 CPC for not filing the written statement, but he adjourned the case for evidence to 17.2.2003. On 17.2.2003 the petitioner filed his written statement along with the application under Section 151 CPC seeking permission to file written statement, stating out the reason for not filing the written statement in accompanying affidavit. The said application filed by the petitioner for permission to file the written statement came to be rejected on the ground that the Court has no power to grant time for filing written statement after expiry of 90 days period from the date of service of summons. The said order dated 17.2.2003 refusing to grant time to file written statement is challenged in this Writ Petition.
2. After amendment of the Civil Procedure Code by Act 46/1989 and by the Act of 22/2002 where procedural law has been substantially amended prescribing the time limit for filing the written statement, when statements were not filed in time the Courts below were passing orders rejecting the request to receive the written statement after the stipulated period on the ground that the Courts have no jurisdiction to receive the written statement. In view of the amendment the question that arise for my consideration are:
(a) What is the object behind these amendments, fixing a period for filing the written statement?
(b) Whether in a given case the Court is precluded from receiving the written statement filed beyond the period stipulated?
3. In order to answer these questions, it is necessary to have a look at the amendments carried out to the various provisions dealing with written statement. Order 5 Rule 1 of CPC, which deals with summons, has been extensively amended as under:
"1. Summons - (1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant:
Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiff's claim:
Provided further 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".
Correspondingly, Order 8 Rule 1, which deals with written statement, also has been extensively amended as under:
"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."
Order 8 Rule 5(2) of CPC reads as under:
"(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved".
Similarly, Order 8 Rule 9, which deals with subsequent pleadings, also has been amended, reads as under:
"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."
Order 8 Rule 10 deals with procedure when party fails to present written statement called for by the Court, and it reads as under:
"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."
One other provision, which requires to be noticed in this context is, Section 148 of CPC, which deals with enlargement of time, which reads 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 thirty days in total, even though the period originally fixed or granted may have expired".
4. Therefore, by the proposed amendment, all that the Legislature intends to do is to prescribe a time limit within which the written statement is to be filed Order 5 Rule 1 and Order 8 Rule 1, as amended, confers a right on the defendant to file the written statement within 30 days from the date of service of summons. However, on a request made by the defendant for extension of time to file the written statement, the Court has the power to extend the time for filing the written statement at the request of the defendant by another 60 days beyond the 30 days period prescribed by the aforesaid provisions, for reasons to be recorded in writing. Even after such an extension, if the defendant fails to file the written statement within 90 days from the date of service of summons, what should happen, is not provided under the CPC. Does he loses his right to file the written statement for all time to come? and has the Court has jurisdiction to entertain the written statement beyond the 90 days time, as aforesaid?
5. The answer to these questions depends on the interpretation to be placed on the aforesaid provisions of law, in particular, whether the use of the word "Shall" in the aforesaid provision makes it mandatory.
6. The Supreme Court in the case of SHARIF-UD-DIN v. ABDUL GANI LONE , dealing with the question whether a rule is mandatory or directory, has held as under:
"9. The difference between a mandatory rule and a directory rule is that while the former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the rule is enacted. Certain broad propositions which can be deduced from several decisions of Courts regarding the rules of construction that should be followed in determining whether a provision of law is directory or mandatory may be summarised thus: The fact that the statute uses the word 'shall' while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one. Where however, a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner, the former has to be regarded as a mandatory one. A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on, another rule would be contravened. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that a failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specific consequence should not follow."
7. The Supreme Court in the case of TOPLINE SHOES LIMITED v. CORPORATION BANK Vol. 111 2002 CC 515 interpreting a similar provision in the Consumer Protection Act of 1986,has held as under:
"Thus the intention to provide a time-frame to file a 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 there-for. 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. The Forum may refuse to extend time beyond 15 days, in view of Section 13(2)(a) of the Act but exceeding the period of 15 days of extension, would not cause any fatal illegality in the order."
8. From the aforesaid proposition of law, it becomes clear that where the statute uses the word 'shall' while laying down a duty it is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of law is to be defeated by non-compliance with it, it has to be regarded as mandatory. A procedural rule ordinarily should not be construed as mandatory.
9. It is also relevant to note at this juncture that the Legislature in its wisdom has not stated decisively what consequences would follow in the event of the written statement not being filed within the period stipulated. In other words, in the absence of expressly stating what the penal consequences would be when the written statement is not filed within the stipulated period, notwithstanding the use of the word 'shall' in Order 5 Rule 1, Order 8 Rule 1, Order 8 Rule 9 and Order 8 Rule 10, it cannot be said that the said provisions are mandatory.
10. In this background, if we look at the entire scheme of these provisions and the law prior to amendment and after amendment, it appears to me that the Legislature never intended to impose any penal consequences on account of non-compliance of these statutory provisions. The whole object of the proposed amendment is to expedite the disposal of civil cases. Though prior to amendment, no time was stipulated for filing the written statement, both the litigant as well as the Court took these provisions casually. The litigant though that as a matter of right he is entitled to adjournment any length of time to file the written statement. Similarly, merely because no fetters were placed on the powers of Court in granting time for filing the written statement, Courts granted time for a mere asking, without compelling the parties to file the written statement at the earliest. Several interlocutory applications were made even before filing of the written statement, such as, applications for rejection of plaint under Order 7 Rule 1 CPC, applications calling for better particulars under Order 6 Rules 4 and 5, applications for interrogations, etc. The resultant position being, for years written statements were not filed. In the absence of a written statement, the Court was precluded from framing issues and proceeding with the trial of the suit. This was one of the major cause for the delay in the disposal of civil litigations. It is to remedy this mischief, that the Legislature has stepped in and wants the litigants and the Court to consider this aspect with some seriousness and to bring home the necessity of completing the pleadings in the case at the earliest, so that Trial could proceed. As a first step the provisions for seeking better particulars is being deleted from the Code; time limit is prescribed for disposal of the application for interrogatories. It is in this context, that the Legislature has thought it fit to prescribe a time limit within which the written statement is to be filed and to a large extent the power of the Court to grant extension of time for filing the written statement has been curbed. Therefore, the provision is more byway of procedure to achieve the object of speedy disposal of such disputes. But it falls short of creating of any kind of substantive right in favour of the plaintiff by reason of which the defendant may be debarred from placing his written statement in defence in any circumstances whatsoever. The whole object of the amendment is to provide a time-frame to file a written statement. It is really meant to expedite the hearing of such matters and to avoid unnecessary adjournments to drag on the proceedings on the pretext of filing written statement. No penal consequences are prescribed for not filing the written statement within the stipulated period. Under these circumstances, the provision appears to be directory in nature. Substantive compliance of the said provision is sufficient to achieve the object regarding which the rule is enacted.
11. In pursuance to Order 8 Rule 5(2) read with Order 8 Rule 10 which provides that the Court shall pronounce the judgment against the defendant who has not filed the written statement, if the Court were to pronounce the judgment for non-filing of the written statement after the expiry of the stipulated period, then the question of either defendant requesting for permission to file the written statement or to condone the delay in filing the written statement and receive the same on record or the Court extending the time for filing the written statement, would not arise at all. However, the problem arises only when the Court does not pronounce the judgment against the defendant, but adjourns the case to another hearing date. The language employed in the aforesaid provision make it very clear that the defendant has a right to file the written statement within 30 days from the date of service of summons. Thereafter, he has a right to request the Court to allow him to file the written statement, which request, the Court is competent to consider and grant. There is no restriction imposed on the defendant to make such a request. The restriction is on the power of the Court to grant the extension sought for. The amended provision though recognizes the power of the Court to extend the period for filing the written statement, it puts restrictions on such power of the Court by stating that the Court can extend the time only by another 60 days, in all 90 days from the date of service of summons. Therefore, there is no bar under the law for the defendant to request the Court for permission to file the written statement, after the stipulated period. Even in cases where the written statement is not filed by the defendant within 30 days or within the extended period of 60 days, under Order 8 Rule 9, the Court has been empowered to call upon the defendant to file the written statement at any time subject to the condition that if the Court calls upon the defendant to file the written statement, it shall fix time of not more than 30 days for presenting the same. While amending Order 5 Rule 1 and Order 8 Rule 1, stipulating the period for filing the written statement, the Legislature did not think it fit to amend correspondingly the provisions contained in latter part of Order 8 Rule 9, where the Court has been empowered to call upon the defendant to file a written statement at any time. But the Legislature thought it fit to restrict the power of the Court to fix the time for filing such written statement. Therefore, it is clear that at any time before the judgment is pronounced, even after the expiry of the time stipulated under Order 8 Rule 1 to file the written statement is over, the Court still has the power to call upon the defendant to file the written statement. Hence, by the proposed amendment, the Legislature did not intend to take away the power of the Court to receive the written statement. What is sought to be introduced by way of amendment is, to fix the time within which the said statement is to be filed. Interestingly, no penal consequences are prescribed for not filing the written statement within the time stipulated.
12. The Supreme Court in the case of SANGRAM SINGH v. ELECTION TRIBUNAL, KOTAH AND ANR. , dealing with interpretation to be placed on the provisions of CPC which is the procedural law, has held as under:
"(16) Now a code of procedure must be regarded as such. It is "procedure1 something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it.
(17) Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle".
13. Prior to amendment, interpreting Order VIII Rule 10 of CPC, the Supreme Court in the case of BALRAJ TANEJA v. SUNIL MADAN , regarding the approach of the Court in the cases where the written statement is not filed, has cautioned the Courts in the following manner:
"xxxxxx In a case, specially where a written statement has not been filed by the defendant, the Court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly the passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the Court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the Court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression the Court may, in its discretion require any such fact to be proved" used in Sub-rule (2) of Rule 5 of Order 8, or the expression may make such order in relation to the suit as it thinks fit used in Rule 10 of Order 8".
14. Relying on the aforesaid judgment, the Division Bench in the case of SMT. AISHA Bl AND ANR. v. M. SHAMSHER KHAN ILR 2001 KAR 546 has held as under:
"12. Now, we come to our reasonings and inferences. From a reading of Rule 5(2) and Rule 10 of Order VIII of the CPC and the law laid down by the Supreme Court in Balraj Taneja's (supra), it is now clear that even if the defendant does not file his written statement, it is incumbent upon the Trial Court to apply itself to the facts pleaded by the plaintiff and come to its own conclusion that even if the facts as stated in the plaint are taken as true, it does not create any in-built inconsistency on facts requiring the same to be proved by the plaintiff by adducing evidence. In case, the Court, after going through plaint, finds that the facts disclosed therein gives rise to two versions of the foundational facts on which the relief ought to be based, then it will be necessary for the Court to direct the plaintiff to lead evidence so that on appreciation thereof the Court can ascertain the correct facts and thereupon either decree or dismiss the suit. But, if the Court finds that the facts pleaded are consistence and forms good basis for awarding the relief claimed, then the Court is required to decree the suit on the basis of the facts pleaded in the plaint, since in the absence of written statement filed by the defendant controverting any of those facts, the same has to be taken as admitted."
15. The Bombay High Court in the case of VIMALKUMAR NATHMAL GOENKA v. VINOD KUMAR NATHMAL GOENKA AND ORS. has held that when once the Court did not exercise jurisdiction vested in it by the first part of Order VIII Rule 10 of CPC, i.e by pronouncing the judgment on failure to fife written statement as required under Order VIII Rule 1 of CPC, the case would fall within the ambit of latter part of Rule 10 of Order VIII of CPC, i.e. "or make such order in relation to the suit as it thinks fit". Once the case/suit was adjourned to future date, it is implied that the Trial Court had exercised discretion contemplated in the above referred latter part of Rule 10 of Order VIII of CPC. Therefore, it cannot be said that the Court has no jurisdiction to accept the written statement even though the cases was posted for pronouncement of judgment. Similar view was taken by the Bombay High Court in the case of VITHAL RAMCHANDRA PATIL v. BHAGWAT WAMAN GAIKWAD (1996) 2 Mah LJ 064 wherein it was held that, for the ends of justice, if necessary, the written statement can be admitted on the record till the Court proceeds to deliver the judgment.
16. The Calcutta High Court in the case of RAMESH CHANDRA BHATTACHARYYA v. CORPORATION OF CALCUTTA AND ORS. , has held that Order 8 Rule 10 CPC gives discretion to the trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under Order 10, the Court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given, the Court can very well exercise its discretion to admit the written statement even at the stage when the ex-parte hearing is concluded and the Court has fixed a date for delivery of judgment. The Trial Court has the jurisdiction under Order 8 Rule 10 of CPC to accept the written statement even at the stage prior to delivery of judgment.
17. It cannot be forgotten that the Code of Civil Procedure is something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of the Sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against provided always that justice is done to both sides lest the very means designed for the furtherance of justice be used to frustrate it. It is also to be borne in mind that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.
18. Viewed from this background, it becomes clear that the sole object of the proposed amendment is not to penalize or punish the defendant who has not filed the written statement in time nor to encourage and facilitate decision being reached behind his back and that he should not be precluded from participating in the proceedings. The object is to provide a time frame to file the written statement, so that hearing of the suits can be expedited and unnecessary adjournments are avoided. The amendment is more by way of procedure. The amendment seeks to achieve the object of speedy disposal of suits and it is an expression of desirability in strong terms. It does not create a substantive right on the plaintiff and it does not take away a substantive right to file the written statement by the defendant. It is for the Court to consider all the facts and circumstances in the light of the aforesaid provisions as amended, providing a time-frame for filing written statement, as a guideline, and then to exercise its discretion as best to serve the ends of justice and achieve the object of speedy disposal of such cases keeping in mind the principles of natural justice as well. It is the substantive compliance of the said provision that is required and not strict compliance in letter and spirit. Therefore, when the Court as not pronounced the judgment on failure of the defendant to file the written statement within the stipulated time, if the case is adjourned for any reason whatsoever and before the pronouncement of judgment if a request is made to receive the written statement and the Court finds that it is desirable to have the defence on record, notwithstanding the expiry of the period stipulated under Order 8 Rule 1 or Order 5 Rule 1, the Court has the power to receive such written statement. The Court is not rendered powerless.
19. However it is made clear that a defendant has a right to file the written statement within thirty days from the date of service of summons on him. Further, he has a right to request for extension of time by another 60 days and the Court has the power to extend the time for reasons to be recorded in writing. Once the aforesaid period is over, the defendant loses his right to file the written statement, but his right to request the Court for taking the written statement after the stipulated period is not lost. Though the power of the Court to extend the time is circumscribed by the aforesaid statutory provisions as amended, the power to receive written statement after the aforesaid period is not completely taken away. The Court could press into service Section 148 of the Code of Civil Procedure or the latter part of Order 8 Rule 9 CPC as a source of power to receive such written statement. It is needless to point out that filing of written statement within the stipulated period is the rule. Filing or receiving written statement beyond the stipulated period is only an exception. It is left to the discretion of the Court to exercise the power to receive the written statement beyond the stipulated time. The said discretion is a judicial discretion. No defendant as a matter of right can insist that after the expiry of the period prescribed under law the written statement should be taken on record.
20. All that the Court has to bear in mind is what the Legislature had intended in bringing the amendment and the substantive compliance of the said provision to achieve the object. Keeping in mind these principles, if the Courts were to receive the written statement filed beyond the period stipulated, it would be committing no illegality. On the other hand, it would advance the cause of justice and no fault could be found with such act on the part of the Court.
21. In view of my discussion aforesaid the Court below committed a serious error in holding that the Court has no jurisdiction to receive written statement after the period stipulated. However, as the written statement is notified within time and if it is to be permitted beyond the period the plaintiff has to be duly compensated for the delay in filing the written statement. Hence, I pass the following order.
The impugned order passed by the Court below is hereby quashed. The written statement already filed by the petitioner before the Court below shall be taken on record subject to the condition that he shall pay a cost of Rs. 1000-00 to the respondent.
Office is directed to circulate a copy of this order to all the subordinate Courts in the State of Karnataka.