Madras High Court
Kuthalingam Alias Sathyaraj vs T.S.Rama Narayanan on 7 January, 2010
Equivalent citations: AIR 2010 (NOC) 593 (MAD.), 2010 AIHC (NOC) 860 (MAD.)
Author: S.Palanivelu
Bench: S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07/01/2010 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU C.R.P.(PD)(MD)No.1518 of 2009 and M.P.(MD)No.1 of 2009 Kuthalingam alias Sathyaraj ... Petitioner Vs. 1.T.S.Rama Narayanan 2.T.S.Hariharakrishnan ... Respondents Civil Revision Petition filed under Article 227 of Constitution of India, against the order dated 11.07.2009 made in I.A.No.190 of 2008 in O.A.No.454 of 2006, on the file of the Additional District Munsif Judge, Tenkasi. !For Petitioner ... M/s.V.Janakiramulu ^For Respondent ... M/s.Ramesh alias Ramaiyah * * * :ORDER
The petitioner is the sixth defendant in I.A.No.190 of 2008, on the file of the Additional District Munsif Court, Tenkasi, which was originally filed as O.S.No.454 of 2006 in the same Court. It is a suit for declaration and recovery of possession. The respondents are plaintiffs in the suit.
2. In the affidavit, it is alleged that when the case was posted for filing written statement of the defendants on 22.01.2007, this petitioner could not attend the Court on account of his illness, who was suffering from Jaundice and was taking country medicine in Kerala and hence, he could not file the written statement. Due to the said ailment, he was unable to attend the Court also. Hence, an ex parte order was passed against him on that day. So, this petition has been filed to set aside the ex parte order and to receive additional statement.
3. In the counter filed by the second respondent adopted by the third respondent, it is stated that it is not true to state that on 22.01.2007 and the previous period the petitioner was suffering from jaundice, that for having cured of his jaundice he had been to Kerala and took native medicine and hence, he could not appear before the Court on 22.01.2007. The petitioner has not stated when he fell ill, when he recovered, from which Doctor and in which place he took treatment. No documentary evidence is forthcoming in this regard. Even though he has stated that he has filed the written statement, in fact, he has not filed the written statement. He has only filed the petition to drag on the proceedings. Hence, the petition may be dismissed.
4. The learned Additional District Munsif, Tenkasi, not content with the reasons adduced by the petitioner in his affidavit, dismissed the application. It is stated in the affidavit that the petitioner filed written statement along with the application to set aside the ex parte order. But the fact remains that the said petition was filed sans written statement.
5. Though the ex parte order was passed on 22.01.2007, only on 29.07.2008, the petition to set aside the ex parte order was filed before the Court after a long period. It has not accompanied the written statement. The reasons adduced in the affidavit have not been established. The petitioner has miserably failed to mention the dates, place, when and where he took the medical treatment. He had not examined nobody else to show that he was taking such treatment for a long time. On a careful scrutiny of the materials available, the finding recorded by the Trial Court is correct, which does not warrant any interference.
6. Insofar as the non-filing of the written statement by the petitioner is concerned, much was said before this Court by the learned counsel for both sides. Mrs.J.Padhmavathi Devi, learned counsel for the petitioner, would submit that in fact, as the petitioner suffered from jaundice, there could be no document to show the native treatment for jaundice and that the reasons mentioned in the affidavit could be treated to be the reasons for non-filing of the written statement in time and the reasons for receipt of the written statement. In the absence of written statement, no such contention could be put forward.
7. Conversely, Mr.Ramesh @ Ramaiyah, learned counsel for the respondent, would contend that as per the Civil Procedure Code, the time schedule prescribed for filing of written statement is within 30 days and if he wants further time he has to file application before the Court saying sufficient reasons and even in such circumstances, the grant of time shall not exceed 90 days in all. In support of his contention, he placed reliance upon a Full Bench decision of the Supreme Court reported in 2005 (3) CTC 355, (Kailash v. Nanhku and others) in which Their Lordships, while dealing with the impact and applicability of the Order 8, Rule 1 of CPC, held that extension of time upto 90 days is directory and not mandatory. In exceptional situations, the Court may extend the time for filing the written statement though the period of 30 days and 90 days, referred to in the provision, has expired and extension of time can only be by way of an exception and for reasons assigned by the defendant and also recorded in writing by the Court as to its satisfaction. The operative portions of the judgment are as follows:
"41. Considering the object and purpose behind enacting Rule 1 of Order VIII in the present form and the context in which the provisions is placed, we are of the opinion that the provision has to be construed as directory and not mandatory. In exceptional situations, the Court may extend the time for filing the written statement though the period of 30 days and 90 days, referred to in the provision, has expired. However, we may not be misunderstood as nullifying the entire force and impact - the entire life and vigour - of the provision. The delaying tactics adopted by the defendants in law Courts are now proverbial as they do stand to gain by delay. Therefore, the judge trying the case must handle the prayer for adjournment with firmness. The defendant seeking extension of time beyond the limits laid down by the provision may not ordinarily be shown indulgence.
42. Ordinarily, the time schedule prescribed by Order 8, Rule 1, has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the Court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for asking more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the Court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order 8, Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended."
8. Their Lordships have reached the above said conclusion by observing that though the language of the proviso to Rule 1 of Order 8, of the CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance and that the power of the Court to extend time for filing the written statement beyond the time schedule provided by Order 8, Rule 1 of the C.P.C. is not completely taken away. On a later occasion, a decision reported in 2007 (4) CTC 326 (R.N.Jadi and Brother and others v. Subhashchandra), the Full Bench of the Supreme Court has rendered a judgment, referring to the above said judgment in Kailash case and other decision of the Court observed that dispensation that makes Order 8, Rule 1 directory leaving it to Courts to extend time indiscriminately would tend to defeat object sought to be achieved by 1999 Amendment. It is further held as follows:
"It is, therefore, necessary to emphasize that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the Court being conscious of the fact that even the power of the Court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order 8, Rule 1 must be adhered to and that only in rare and exceptional cases, the breach thereof will be condoned. Such an approach by Courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delay in the disposal of suits filed in Courts.
8 (1). In the said decision, it is also held as under:
I am conscious that I was a party to the decision in Kailash v. Nankhu and others, 2005 (3) CTC 355 : 2005 (4) SCC 480, which held that the provision was directory and not mandatory. But there could be situations where even a procedural provision could be construed as mandatory, no doubt retaining a power in the Court, in an appropriate case, to exercise a jurisdiction to take out the rigor of that provision or to mitigate genuine hardship. It was in that context that in Kailash v. Nankhu and others (supra) it was stated that the extension of time beyond 90 days was not automatic and that the Court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from the time limit fixed by the Code and the power inhering in the Court in terms of Section 148 of the Code, Kailash is no authority for receiving written statements, after the expiry of the period permitted by law, in a routine manner."
9. The learned counsel appearing for the respondents also cites a decision of this Court reported in 100 L.W. 536 (Subbiah v. Muthukrishnan), in which it is time the lower Courts take care to see that the matters are not adjourned on flimsy grounds. Even applications for setting aside ex parte orders have to be considered seriously and the impression which has recently gained ground that ex parte orders are set aside in a casual manner for the mere asking has to be dispelled as early as possible.
9(i). In 2009 (4) L.W. 56, (Chandraprakasam and another v. S.Krishnan and five others), Justice K.K.Sasidharan, while dealing with the situation, referred to the decision by the Supreme Court in Jadi and brothers case (supra) held that while considering an application for condoning the delay in filing written statement, the trial Court should also consider the possible prejudice to the plaintiff and that the Trial Court was given the discretion to receive the written statement beyond the limit of 30 days and for the purpose of exercising such discretion, the defendant was obliged to satisfy the trial Court about the reasons for such delay.
9(ii). In AIR 2005 ALLAHABAD 12 (Dr.Nanda Agarwal v. Matri Mandir and another) it is held that when the defendants failed to file written statement after lapse of 90 days from the date of service of summons the penalty which he would face is that he cannot file written statement and the suit has to be decided even in the absence of written statement.
10. In view of the principles laid down by the Supreme Court, it is the bounden duty of the respondents to file the written statement within 90 days. He may seek the leave of the Court to file the written statement beyond 30 days and the Court is empowered to grant further time till 90 days from the date of service of summons on being satisfied with the reasons adduced in the affidavit, which is required to be in writing by the Court and in exceptional cases the grant of time beyond 90 days must be strengthened by the satisfaction of the justification for granting such extension. The extension beyond 90 days being the exceptional cases, even the extension of time after 30 days is not automatic but has to be based on valid reasons.
11. Following the principles formulated by the Apex Court, it ought to be necessarily held that there is no ground for the Court to record its satisfaction for setting aside the ex parte order. The written statement has not been filed along with the petition to set aside the ex parte order. This Court is not at all satisfied with the reasons assigned in the affidavit for the absence of the petitioner and the petitioner could not be stated to have derived any benefit from any law for his lapse. In such view of the matter, the order challenged before this Court does not warrant any disturbance by this Court. It has to be confirmed and accordingly it is confirmed. The Civil Revision Petition is devoid of merits. It suffers dismissal.
12. In the result, the Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. No costs.
srm/ggs To The Additional District Munsif, Tenkasi.