Madhya Pradesh High Court
Kusum Singh vs Shatrughan Soni on 31 August, 2024
Author: Gurpal Singh Ahluwalia
Bench: G.S. Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC-JBP:43951
1 M.P. No.2102/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
ON THE 31st OF AUGUST, 2024
MISCELLANEOUS PETITION No.2102 of 2024
KUSUM SINGH AND ANOTHER
Versus
SHATRUGHAN SONI AND OTHERS
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Appearance:
Shri R.K. Verma - Senior Advocate with Shri Ram Murti Tiwari -
Advocate for the petitioners.
Shri Gajendra Parashar - Panel Lawyer for respondent No.10/State.
None for other respondents though served.
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ORDER
This petition under Article 227 of Constitution of India has been filed against orders dated 06/08/2022 and 05/03/2024 passed by Second Civil Judge Senior Division Shahdol and Additional Judge Shahdol to the Court of First Civil Judge Senior Division Shahdol respectively in RCSA No.147/2021, by which right of the petitioners to file written statement was closed and the prayer to take written statement on record was rejected.
2. It is the case of petitioners that defendants No.8 and 10/ petitioners entered their appearance on 07/12/2021 and counsel for plaintiff was directed to supply the documents. Accordingly on 08/01/2022, the documents were supplied. It is submitted by counsel for petitioners that since petitioner No.1 was not well and petitioner No.2 has shifted to Australia, therefore they could not file their written NEUTRAL CITATION NO. 2024:MPHC-JBP:43951 2 M.P. No.2102/2024 statement and ultimately by order dated 06/08/2022, right of the petitioners to file written statement was closed and the case was fixed for 03/09/2022 for framing of issues. Thereafter on 03/09/2022, defendants No.8 & 10/petitioners filed an application for taking their written statement on record and the written statement was also filed. By impugned order dated 05/03/2024, the said application has been rejected.
3. Challenging the orders passed by Court below, it is submitted by counsel for petitioners that since petitioner No.1 was not well and petitioner No.2 has shifted to Australia, therefore they could not file the written statement within time. It is further submitted that in the light of judgment passed by Supreme Court in the case of Salem Advocate Bar Association, T.N. Vs. Union of India reported in (2005) 6 SCC 344 and Sandeep Thapar Vs. SME Technologies Private Limited reported in (2014) 2 SCC 302, it is clear that the outer limit of 90 days is not mandatory and if a party discloses the exceptional circumstance for not filing the written statement within the extended period of 90 days, then the time for filing the written statement can be extended.
4. None appears for the respondents though served.
5. Heard learned counsel for the petitioners.
6. Petitioners have not filed the complete order-sheets of the trial Court. Accordingly, status of the trial was downloaded from the website of the District Court and it was found that as many as 9 opportunities were granted to the petitioners after documents were supplied to them. As already pointed out, petitioners entered their appearance on 07/12/2021 and documents were supplied by plaintiff on 08/01/2022. Thereafter the case was fixed for 29/01/2022, 22/02/2022, 26/03/2022, NEUTRAL CITATION NO. 2024:MPHC-JBP:43951 3 M.P. No.2102/2024 12/04/2022, 19/04/2022, 09/05/2022, 14/06/2022, 04/07/2022 and 14/07/2022 but the written statement was not filed by the petitioners.
7. Under these circumstances, the Trial Court was left with no other option but to close the right of the petitioners.
8. So far as the submission made by counsel for petitioners that petitioner No.1 was not well is concerned, the same is false. Petitioners have filed the certified copy of order-sheets dated 07/12/2021, 08/01/2022 and 03/09/2022. On all these three dates, petitioner No.1 was present before the Court and her signature is also found in the corner of the order-sheets. So far as the shifting of petitioner No.2 to Australia is concerned, the same may be taken as an exceptional circumstance.
9. The Supreme Court in the case of Kailash Vs. Nankhu and Others reported in (2005) 4 SCC 480 has held as under:-
"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 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 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 NEUTRAL CITATION NO. 2024:MPHC-JBP:43951 4 M.P. No.2102/2024 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.
* * *
44. The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the court. In no case, shall the defendant be permitted to seek extension of time when the court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel. The court may impose costs for dual purpose: (i) to deter the defendant from seeking any extension of time just for the asking, and (ii) to compensate the plaintiff for the delay and inconvenience caused to him."
10. The Supreme Court in the case of Salem Advocate Bar Association, T.N. Vs. Union of India reported in (2005) 6 SCC 344 has held as under:-
"20. The use of the word "shall" in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word "shall" is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to NEUTRAL CITATION NO. 2024:MPHC-JBP:43951 5 M.P. No.2102/2024 be preferred. The rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.
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 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 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 the power to allow the defendant 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 NEUTRAL CITATION NO. 2024:MPHC-JBP:43951 6 M.P. No.2102/2024 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."
11. In the present case, right to file written statement was closed on 06/08/2022 and on 03/09/2022 i.e. the next date, the application along with written statement was filed. Although in order-sheet dated 03/09/2022, it is no where mentioned that application along with written statement has been filed and it is merely mentioned that the issues were framed but it is clear from the impugned order that the petitioners had filed an application for taking written statement on record on 03/09/2022.
12. Under these circumstances, this Court is of considered opinion that if the extended period of 90 days is excluded then the written statement was filed within 5 months thereafter.
13. Under these circumstances, as the petitioner No.2 is not available in the country, this Court is of considered opinion that once defendants No.8 & 10 had already filed their written statement, then the same can be taken on record on payment of cost. Since the petitioner No.1 has taken a false stand that she was ill whereas she was continuously attending the Court proceedings, therefore, it is observed that on payment of cost of Rs.25,000/- payable to plaintiff, orders dated 06/08/2022 and 05/03/2024 can be set aside.
14. Accordingly, subject to payment of Rs.25,000/- (Rupees Twenty Five Thousand Only), orders dated 06/08/2022 and 05/03/2024 passed by Second Civil Judge Senior Division Shahdol and Additional Judge NEUTRAL CITATION NO. 2024:MPHC-JBP:43951 7 M.P. No.2102/2024 Shahdol to the Court of First Civil Judge Senior Division Shahdol respectively in RCSA No.147/2021, are hereby set aside. The written statement filed by petitioners/ defendants No.8 & 10 is taken on record. The Trial Court is directed to proceed accordingly.
15. It is made clear that the deposit of cost shall be the condition precedent and the plaintiff shall be entitled to withdraw the cost. If the cost is not deposited within a period of one month from today, then this order shall automatically stand recalled and orders dated 06/08/2022 and 05/03/2024 passed by Second Civil Judge Senior Division Shahdol and Additional Judge Shahdol to the Court of First Civil Judge Senior Division Shahdol respectively shall automatically stand revived.
16. With aforesaid observations, petition is finally disposed of.
(G.S. AHLUWALIA) JUDGE S.M. Digitally signed by SHUBHANKAR MISHRA Date: 2024.09.03 11:07:11 +05'30'