Rajasthan High Court - Jaipur
Dinesh Srivastava vs Addi Civil Judge Andors on 11 July, 2019
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 352/2010
Dinesh Srivastava, aged about 52 years, son of Shri HM
Srivastava, resident of Basan Gate, Bharatpur.
----Petitioner
Versus
1. Additional Civil Judge (Senior Division) No.2, Bharatpur
(Rajasthan)
2. Sub Registrar, Bharatpur.
3. Prakash son of Shri Jawahar (Deceased) :
3/1 Smt. Kanta
3/2 Deepak
3/3 Kumari Jaya
3/4 Kumari Shaifali
All are legal heirs of Prakash (deceased), resident of 92/82, Patel
Marg, Mansarovar, Jaipur
----Respondents
For Petitioner(s) : Mr.Manish Kumar Sharma For Respondent(s) : Mr.Jai Prakash Gupta HON'BLE MR. JUSTICE ASHOK KUMAR GAUR Order 11/07/2019 The instant writ petition has been filed challenging the order dated 26th May, 2009 whereby the Court below has permitted the written statement to be filed beyond the period of 90 days.
Learned counsel for the petitioner - Mr.Manish Kumar Sharma submitted that the Court below has committed illegality in permitting the written statement to be filed beyond 90 days, as Order 8 Rule 1 CPC provides that written statement is required to be filed within 90 days.
Learned counsel for the petitioner further submitted that the Court below has not considered that an application to explain the delay taken in filing the written statement, was not filed at all. (Downloaded on 30/08/2019 at 10:26:24 PM)
(2 of 7) [CW-352/2010]
Learned counsel submitted that in absence of such
application, the Court below could not have permitted filing of written statement beyond the prescribed time.
Learned counsel submitted that the order, which has been passed, suffers from serious legal infirmity and the defendants should not be permitted to file written statement, if they were not vigilant and did not comply with the time prescribed to file written statement.
Learned counsel for the petitioner has placed reliance on the judgment of the Supreme Court in the case of Mohammed Yusuf Vs. Faij Mohammad & Ors. reported in (2009) 3 SCC 513.
Learned counsel has also raised an objection that the counsel, who is appearing on behalf of the respondents, is in fact the Power of Attorney holder on behalf of the respondents and as such, counsel is not representing the contesting respondents before this Court, who were defendants.
Per contra, learned counsel Mr.Jai Prakash Gupta, who is appearing for the respondents, has submitted that the correct facts are required to be brought before this Court.
Learned counsel submitted that on 2nd May, 2003, an application in respect of written statement, which was to be filed by the original defendant Prakash s/o Jawahar, was filed and the original defendant Prakash s/o Jawahar (since deceased) had expired prior to decision of the said application.
Learned counsel submitted that after death of original defendant, an application under Order 22 Rule 4 CPC was filed for bringing his legal representatives on record. Amended cause title was filed on 17th January, 2006 and service of notice on legal (Downloaded on 30/08/2019 at 10:26:24 PM) (3 of 7) [CW-352/2010] representatives of original defendant was effected on 15 th May, 2006.
Learned counsel submitted that written statement was filed on 8th November, 2006 without any delay.
Learned counsel also submitted that the petitioner had filed an application under Order 8 Rule 10 CPC against the original defendant and no such application, opposing filing of written statement, was filed against the legal representatives of the original defendant.
Learned counsel further argued that the power given under Order 8 Rule 1 CPC to file written statement within the period of 90 days is directory in nature and not mandatory.
Learned counsel has placed reliance on the judgment passed by the Supreme Court in the case of Zolba Vs. Keshao & Ors. reported in (2008) 11 SCC 769.
Learned counsel further submitted that the Coordinate Bench of this Court in the case of Laxmi Narayan Sharma Vs. Smt. Rajeshree Khandelwal & Ors. reported in 2016 (4) DNJ (Raj.) 1671 has also followed the law laid down by the Supreme Court and held that if the written statement was not filed within 90 days and further, application for condonation of delay was not filed, power to grant time beyond 90 days is available with the Court and requirement of 90 days is not mandatory.
Learned counsel, on the strength of said judgment, submitted that there is no necessity to file formal application for condonation of delay.
I have considered the submissions made by learned counsel for the parties and perused the record.
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(4 of 7) [CW-352/2010] The facts of the case, which have come on record, establish that the original defendant had expired after filing of suit on 2 nd May, 2003 and his legal representatives were brought on record and service on them was effected on 15 th May, 2006. The written statement is said to be filed on 8th November, 2006.
This Court finds that if newly arrayed/legal representatives of the original defendant were permitted to be impleaded as party, they have right to file written statement and if they have filed written statement after some delay, it cannot be said that the trial Court has committed illegality in permitting written statement to be taken on record.
I have gone through the judgment cited by learned counsel for the petitioner in the case of Mohammed Yusuf (supra). In the said case, the Supreme Court itself has held that the time, which is prescribed under Order 8 Rule 1 CPC, can be extended in certain circumstances and the Court can also take note of the fact of a particular case where it is in the interest of justice that the time is required to be extended.
This Court finds that in the present case, service on the legal representatives of the original defendant has been effected on 15 th May, 2006 and if they filed written statement on 8 th November, 2006, no fault can be found.
This Court further finds that in the case of Zolba Vs. Keshao & Ors. (supra), the Apex Court has held that the proviso under Order 8 Rule 1 CPC is not mandatory in nature and it is open for the Courts to permit the parties to file their written statement, if exceptional circumstances are made out. The Supreme Court has further made emphasis that the party should (Downloaded on 30/08/2019 at 10:26:24 PM) (5 of 7) [CW-352/2010] not be denied liberty to participate in the process of justice dispensation.
This Court, following the law laid down by the Supreme Court, finds that permission granted to the respondents to file written statement is not against the law.
This Court finds that in the case of Laxmi Narayan Sharma (supra), the Coordinate Bench of this Court has laid down the law that written statement can be filed beyond 90 days and it is not necessary that it has to be accompanied with formal application for condonation of delay. The relevant para Nos.11 and 12 of the judgment in the case of Laxmi Narayan Sharma (supra) are quoted hereunder for ready reference :
"11. Now coming to the argument advanced by the learned counsel for the plaintiff-respondents that in the absence of an application for condonation of delay in filing the written statement, delay could not be condoned, this court fails to find this argument tenable. There is no requirement under the Code of Civil Procedure to file a formal application for condonation of delay under Order 8 Rule 1. The proviso appended to the said provision gives ample power to the court to condone the delay and does not provide for any requisite as to the moving of an application for the said purpose. The power being directory in nature as settled, the court's power to condone delay is not restricted by such a hyper- technicality. For clarification of doubts, this court does not suggest that in every cases filing of an application for the said purpose be dispensed with; in the peculiar circumstances of the present case, the right of the petitioner-defendant to be given an opportunity to defend his cause cannot be taken away merely because he did not move a formal application. More so, when the court took the written statement and counter claim on record and the same was not objected to by the respondent plaintiff, it impliedly condoned the delay and proceeded to try the lis.(Downloaded on 30/08/2019 at 10:26:24 PM)
(6 of 7) [CW-352/2010]
12. As for the argument advanced by the learned counsel for the petitioner-defendant qua the fact that the filing of the written statement is suspended till the decision on the application filed under Order 7 Rule 11 C.P.C., this court finds force therein. The application under the aforesaid provision can be filed at any stage and it is an independent right of the defendant to point out any infirmity in the suit. The challenge to maintainability of the suit is permissible before the conclusion of trial irrespective of the defendants right to contest the same on merits. However, at the cost of repetition of a settled principle, this court feels the need to state that the only condition which the courts must be bear in mind at the time of adjudicating upon an application filed under Order 7 Rule 11 C.P.C. is that, the court has to consider only the averment set- forth in the plaint and the documents annexed there with and must not look into those put forth in the written statement. When such application is filed, the court has to adjudge the same and dispose it of before it proceeds with the matter. In the present case, the application under the said provision was filed by the petitioner-defendant before the expiry of the period of 90 days viz on 17/05/2013. Considering the facts of the case and upon the perusal of the record, the conduct of the defendant does not seem tainted with any foul-play with a malafide intention to delay the proceedings. In these circumstances, the learned court below should have decided the said application first and only then proceeded with the suit. The question as to whether the application filed under Order VII Rule 11 CPC is required to be disposed of before proceeding further with the trial has been considered by their Lordships of the Supreme Court in the case of RK Roja vs. US Rayudu (supra) and their Lordships in paragraphs Nos.6 and 9 have held as under:-
"6. Once an application is filed under Order VII Rule 11 of the CPC, the court has to dispose of the same before proceeding with the trial. There is no point or sense in proceeding with the trial of the case, in case the plaint (Election Petition in the present case) is only to be rejected at the threshold. Therefore, the defendant is entitled to file the application for rejection before filing his written statement. In case, the application is rejected, the defendant is entitled to file his (Downloaded on 30/08/2019 at 10:26:24 PM) (7 of 7) [CW-352/2010] written statement thereafter (See Saleem Bhai and others Vs. State of Maharashtra and Others). But once an application for rejection is filed, the court has to dispose of the same before proceeding with the trial court. To quote relevant portion from paragraph- 20 of Sopan Sukhdeo Sable case (supra):
"20. ... Rule 11 of Order 7 lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word "shall" is used, clearly implying thereby that it casts a duty on the court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant...."
9. The procedure adopted by the court is not warranted under law. Without disposing of an application under Order VII Rule 11 of the CPC, the court cannot proceed with the trial. In that view of the matter, the impugned order is only to be set aside. Ordered accordingly."
(Emphasis supplied)."
This Court, considering the facts of this case, finds that no error has been committed by the Court below while passing the order dated 26th May, 2009.
Accordingly, the writ petition stands dismissed.
(ASHOK KUMAR GAUR),J Preeti Asopa /81/110 (Downloaded on 30/08/2019 at 10:26:24 PM) Powered by TCPDF (www.tcpdf.org)