Jharkhand High Court
Vipul Munjal vs Shahzad Ansari on 17 August, 2020
Author: Rajesh Shankar
Bench: Rajesh Shankar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No.61 of 2020
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1. Vipul Munjal
2. Ritul Munjal .......... Petitioners.
-Versus-
Shahzad Ansari .......... Respondent.
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CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioners : Mr. Amar Kumar Sinha, Advocate
For the Respondent :
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Order No.05 Date: 17.08.2020
1. This case is taken up through video conferencing.
2. The present civil miscellaneous petition has been filed for quashing the order dated 17.12.2019 passed by the Sub Judge II, Ranchi in Title Suit No.592 of 2017, whereby the petition filed by the defendant/respondent for recalling the order dated 27.04.2018 relating to debarment from filing the written statement has been allowed.
3. The factual background of the case, as stated in this petition, is that the plaintiffs/petitioners filed Original (Title) Suit No.592 of 2017 against the defendant/respondent in the court of Civil Judge (Senior Division)-I, Ranchi, praying inter alia for a decree of declaration of their right, title and interest over the suit property and for confirmation of possession and in the alternative if the plaintiffs/petitioners were not in possession, a decree for recovery of possession be passed. It was also prayed for grant of injunction, restraining the defendant/ respondent from dispossessing the plaintiffs/petitioners from the suit property and/or from putting any obstruction in construction over the suit land beside other reliefs. In the aforesaid suit, the defendant/respondent received notice on 21.11.2017 and appeared on 19.01.2018, however, he did not file written statement till 27.04.2018. As such, vide order dated 27.04.2018, the defendant/respondent was debarred from filing written statement and the case was fixed for evidence of the plaintiffs/petitioners on 15.12.2018. In the meantime, on 15.12.2018 the defendant/respondent filed written statement alongwith a petition under Section 151 CPC and Section 5 of the Limitation Act for recalling the order dated 27.04.2018, stating therein that he had fallen ill and was under bed rest till June 2018.
-2-Thereafter, in the month of July, 2018 he came to the court and enquired about the case through his Advocate, as he did not have his telephone number. Although the petitioners objected the said prayer of the defendant/respondent by filing reply to the petition dated 15.12.2018, the court below vide order dated 17.12.2019 allowed the said petition filed by the defendant/respondent. Hence, the present civil miscellaneous petition.
4. The learned counsel for the petitioner submits that while allowing the petition filed by the defendant/respondent for recalling the order of debarment from filing written statement, the court below has misconstrued the provision of Order VIII Rule 1 CPC. It is submitted that no plausible explanation was given for causing delay in filing written statement and the defendant/respondent was quite negligent in pursuing his case. The impugned decision of the court below amounts to grave miscarriage of justice and as such the impugned order is liable to be set aside.
5. Heard the learned counsel for the petitioners and perused the materials available on record. The petitioners herein have challenged the impugned order dated 17.12.2019 by reasons of which the petition filed by the defendant/respondent for recalling the order dated 27.04.2018 relating to his debarment from filing the written statement has been allowed.
6. In the case of Salem Advocate Bar Association, T.N Vs. Union of India, reported in (2005) 6 SCC 344, the Hon'ble Supreme Court has held as under:-
"21. In construing this provision, support can also be had from Order 8 Rule 10 which provides that 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, the court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the court has been given the discretion either to pronounce judgment against the defendant/respondent or make such other order in relation to the suit as it thinks fit. In the context of the provision, despite use of the word "shall", the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant/respondent even if the written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order 8 Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 Order 8, the court in its discretion would have -3- the power to allow the defendant/respondent to file written statement even after expiry of the period of 90 days provided in Order 8 Rule 1. There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The court has wide power to "make such order in relation to the suit as it thinks fit". Clearly, therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time- limit of 90 days. The discretion of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8 Rule 1."
7. In the case of Kailash Vs. Nanhku & Others, reported in (2005) 4 SCC 480, the Hon'ble Supreme Court has held as under:-
"42. Ordinarily, the time schedule prescribed by Order 8 Rule 1 has to be honoured. The defendant/respondent 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/respondent 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 the 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/respondent 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/respondent and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended."
8. In the aforesaid cases, the Hon'ble Supreme Court having taken into consideration of the language of Order VIII Rule 1 CPC has held that even when written statement is not filed after the expiry of 90 days, the court has been given the discretion either to pronounce the judgment at once or make such order in relation to the suit, as it thinks fit. Thus, the provision of Order VIII Rule 1 providing for the upper limit of 90 days to file written statement is directory in nature. However, the time can be extended only in exceptionally hard cases and should not be so frequently and routinely exercised keeping in mind that the legislature has fixed the upper time limit of 90 days under Order VIII Rule 1 CPC.
-4-9. In the case of New India Assurance Company Limited Vs. Hilli Multipurpose Cold Storage Private Limited, reported in (2015) 16 SCC 20, the Hon'ble Supreme Court, while dealing with the matter relating to Consumer Protection Act, 1986 has observed as under:-
"26. There is one more reason to follow the law laid down in J.J. Merchant v. Shrinath Chaturvedi, (2002) 6 SCC 635] decided in 2002, whereas Kailash v. Nanhku, (2005) 4 SCC 480 was decided in 2005. As per law laid down by this Court, while deciding Kailash, this Court ought to have respected the view expressed in J.J. Merchant as the judgment delivered in J.J. Merchant was earlier in point of time. The aforestated legal position cannot be ignored by us and therefore, we are of the opinion that the view expressed in J.J. Merchant should be followed."
10. Thereafter, a two Judges Bench of the Hon'ble Supreme Court in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Co. Ltd., reported in 2020 SCC Online SC 287, has made reference to the decision of the Constitutional Bench relating to the grant of time for filing response to the complaint under the provisions of the Consumer Protection Act, 1986. One of the questions, which was referred by the two Judges Bench, has been detailed in para 3 of the said judgment, which is quoted as under:-
"3. The first question was referred by a two judge Bench of this Court vide an Order dated 11.02.2016 passed in Civil Appeal No(s).1083-1084 of 2016, Bhasin Infotech and Infrastructure Pvt. Ltd. v. Grand Venezia Buyers Association (Reg), the relevant portion of which is as under:
"There is an apparent conflict between the decisions of this Court in Topline Shoes Limited v. Corporation Bank [(2002) 6 SCC 33], Kailash v. Nankhu [(2005) 4 SCC 480], Salem Advocate Bar Association v. Union of India [(2005) 6 SCC 344] on the one hand and J.J. Merchant v. Shrinath Chaturvedi [(2002) 6 SCC 635 and NIA v. Hilli Multipurpose Cold Storage [2014 AIOL 4615] on the other in so far as the power of the Courts to extend time for filing of written statement/reply to a complaint is concerned. The earlier mentioned line of decisions take the view that the relevant provisions including those of Order 8 Rule 1 of the Civil Procedure Code, 1908 are directory in nature and the Courts concerned have the power to extend time for filing the written statement. The second line of decisions which are also of coordinate Benches however takes a contrary view and hold that when it comes to power of the Consumer Fora to extend the time for filing a reply there is no such power.-5-
Since the question that falls for determination here often arises before the Consumer Fora and Commissions all over the country it will be more appropriate if the conflict is resolved by an authoritative judgment. Further since the conflict is between Benches comprising three Judges we deem it fit to refer these appeals to a five-Judge Bench to resolve the conflict once and for all. While we do so we are mindful of the fact that in the ordinary course a two-Judge Bench ought to make a reference to a three-Judge Bench in the first place but in the facts and circumstances of the case and keeping in view the fact that the conflict is between coordinate Benches comprising three Judges a reference to three Judges may not suffice."
11. The Constitution Bench took into consideration the provision under Order VIII Rule 1 CPC as well as the provision of Section 13(2) of the Consumer Protection Act, 1986 as also the judgments referred by the two Judges Bench and held that in the commercial suit, time for filing written statement provided under Order VIII Rule 1 CPC is meant to be mandatory, but not so for ordinary civil suits. Similarly for the cases under the Consumer Protection Act also, the time provided under Section 13(2)(a) of the Act, 1986 has to be read as mandatory and not directory. It has further been held that so far the judgments of Kailash (Supra.) and Salem Advocate Bar Association (Supra.) are concerned, they hold the field with regard to Order VIII Rule 1 of the Code of Civil Procedure and would not be applicable to the cases dealing with the provisions of Section 13(2) of the Consumer Protection Act, 1986 or such other enactment wherein a provision akin to section 13(2) is there and the consequence is also provided.
12. Further, in the case of Desh Raj Vs. Balkishan (Dead) through proposed legal representative MS Rohini, reported in (2020) 2 SCC 708, the Hon'ble Supreme Court has held as under:-
"13. As regards the timeline for filing of written statement in a non-commercial dispute, the observations of this Court in a catena of decisions, most recently in [Atcom Technologies Ltd. v. Y.A. Chunawala & Co. (2018) 6 SCC 639] holds the field. The unamended Order 8 Rule 1 CPC continues to be directory and does not do away with the inherent discretion of courts to condone certain delays."
13. Thus, the law is now well settled on the issue that 90 days' time prescribed for filing of written statement under Order VIII Rule 1 CPC is directory and not mandatory in nature and the court has discretion -6- to grant further time to the defendant/respondent if sufficient cause for causing such delay has been explained. However, so far as 120 days' time prescribed for filing written statement in commercial dispute is concerned, the same is mandatory in nature and it cannot be relaxed under any circumstance.
14. In the present case, the defendant/respondent had prayed for recalling the order debarring him from filing written statement stating that he had fallen ill and was under bed rest till June 2018 and his lawyer had also left pursuing the case which prevented him from filing written statement within time. The court below after having found sufficient reason, recalled the order dated 27.04.2018 subject to payment of cost of Rs.500/-. Thus, I do not find any infirmity in the impugned order dated 17.12.2019.
15. This petition is, accordingly, dismissed.
(Rajesh Shankar, J.) Sanjay/