Karnataka High Court
S.G. Narayana Swamy vs Ramakrishnappa on 21 January, 2003
Equivalent citations: ILR2003KAR2205, AIR 2003 (NOC) 378 (KAR), 2003 AIR - KANT. H. C. R. 2020, (2003) 7 INDLD 967, (2003) 3 ICC 613, (2003) 3 CIVLJ 866
Author: K. Shreedhar Rao
Bench: K. Shreedhar Rao
ORDER 8 RULES 1, 9 AND 10 -- Defendant did not file the written statement within the period of 90 days and sought for condonation of delay in not filing the written statement. Trial Court dismissed the application contending that the written statement is filed beyond 90 days -- The Order of Trial Court challenged. Held: Non-filing of written statement within the outer limit of 90 days would entail the consequence of the striking of defence as contemplated under Order 11 Rule 21 of CPC. (B) CIVIL PROCEDURE CODE, 1908 (CENTRAL ACT NO. 5 of 1908) - CIVIL PROCEDURE AMENDMENT ACT, 2002 - Order 8 Rule 1 -- Written statement not filed within the outerlimit of 90 days. Can Defendant cross-examine plaintiffs witnessess. Yes. Though written statement not filed, the defendant has opportunity of cross-examining the plaintiff's witness. Therefore, necessarily the formality of recording of evidence has to be gone through when the defendant has made appearance in a case and the Court in such a situation cannot proceed to dispose of the suit forthwith as contemplated under Rule 10. A rigid and a technical view to refuse condonation of delay to reject the written statement filed beyond 90 days would only result in multiplicity of avoidable off shoot proceedings like an appeal against such decree or an application under Order 9 Rule 13 of CPC for setting aside the exparte decree. (C) CIVIL PROCEDURE CODE AMENDMENT ACT, 2002 - ORDER 8 RULE 1 -- Defendant fails to file written statement within the period of 90 days. Does he lose right to file the written statement even when a valid reason for condonation of delay of application filed? No, he does not lose the right to file written statement. He can give valid reason to condone the delay in filing the written statement. The Court in such a situation in the exercise of inherent powers can condone the lapse and admit the written statement. If any inconvenience is caused to the other side, it could be compensated by awarding realistic costs which are in nature both punitive and compensate in order to discourage the misuse or abuse of the provisions. (D) Object of fixing limit of 90 days for filing written statement. The object is only to inject the required speed and expeditiousness in trial and disposal of the suits. The Court should lean in favour of an interpretation which sub-serves the purpose and object of the rule and shun the interpretation which is rigid and counter active against the purpose and object of the rule. CRP allowed. ORDER Sreedhar Rao, J.
1. This revision is filed against the order of Civil Judge, (Jr. Dn.) Kolar on I.A.IV, in O.S. No. 70/2002, filed under Section 151 of CPC. The petitioner is defendant in the suit. The respondent filed a suit for permanent injunction against the defendant. The defendant did not file the written statement within the period of 90 days from the date of service of summons and sought for condonation of delay in not filing the written statement. It is submitted that the written statement is also filed along with I.A. IV along with objections to I.A.I. filed regarding temporary injunction.
2. The Trial Court has rejected the request contending that the written statement filed is beyond the period of 90 days. Therefore, dismissed the application. Being aggrieved, the present revision is filed. The present suit is filed prior to the date of amendment Act coming into force i.e. w.e.f. 1.7.2002. The provisions of Order VIII Rules 1, 9 and 10 of Code of Civil Procedure Amendment Act of 2002 are extracted hereunder for convenient reference.
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 summons."
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.
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 think fit and on the pronouncement of such judgment a decree shall be drawn up."
3. The apparent reading of the provisions indicate that the unbridled discretion of the Court in granting time for filing written statement is curtailed and under the amended provisions, time for filing written statement can be extended maximum to a period of 90 days from the date of service of summons. Under Rule 10, when the written statement is not filed, the Court shall pass a judgment against the defaulting party or make such order in relation to the suit as it thinks fit. If the judgment is already pronounced perhaps the remedy available to the defendant shall be to file an appeal or if it is permissible, an application under Order 9 Rule 13, to set aside the decree if it is an exparte decree.
4. The reading of the provisions of Rules 9 and 10 does not suggest that on the failure of filing of written statement within the outer limit of 90 days would entail the consequence of the striking of defence as contemplated under Order 11 Rule 21 CPC. Although the written statement is not filed, the defendant has opportunity of cross-examining the plaintiff's witness. Therefore, necessarily the formality of recording of evidence has to be gone through when the defendant has made appearance in a case and the Court in such a situation cannot proceed to dispose of the suit forthwith as contemplated under Rule 10. A rigid and a technical view to refuse condonation of delay to reject the written statement filed beyond 90 days would only result in multiplicity of avoidable off shoot proceedings like an appeal against such decree or an application under Order 9 Rule 13 CPC for setting aside the exparte decree.
5. The object of fixing of limit of 90 days for filing written statement was only to inject the required speed and expeditiousness in trial and disposal of the suits. The Court should lead in favour of an interpretation which sub-serves the purpose and object of the rule and shun the interpretation which is rigid and counter active against the purpose and object of the rule. In that view, it has to be held that a party who fails to file written statement within the period of 90 days does not lose right to file the written statement with a valid reason for condonation of delay. The Court in such a situation in the exercise of inherent powers can condone the lapse and admit the written statement. If any inconvenience is caused to the other side, it could be compensated by awarding realistic costs which are in nature both punitive and compensative in order to discourage the mis-use or abuse of the provisions.
6. In view of the reasons and discussions made above, I am of the view that the delay in filing written statement is condoned. The Trial Court is directed to take the written statement on record and shall proceed to dispose of the suit in accordance with law.
7. For the inconvenience caused to the plaintiff, it is directed that the defendant shall pay costs of Rs. 1000/- within two months from the date of this order. On his failure, the benefit given to the petitioner in this order stands vacated.
Accordingly, the revision is allowed.