Madras High Court
Ponnammal vs Subburaman on 8 August, 2003
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 08/08/2003
Coram
The Hon'ble Mr.JUSTICE K.GOVINDARAJAN
C.R.P.(P.D.)No.489 of 2003
Ponnammal .. Petitioner
-vs-
1.Subburaman
2.Elangovan
.. Respondents
Revision Petition filed under Sec.115 of C.P.C., against the order
passed in I.A.No.147/2003 in O.S.No.196/2002 on the file of the
District Munsif Court, Manaparai.
!For Petitioner : Mr.S.Subramaniam Balaji
^For Respondents: Mr.S.Parthasarathy, for M/s.Sarvabhauman
Asscoaites
&
Mr.K.Govindarajan
:ORDER
This Revision Petition is filed against the order passed by the learned District Munsif, Manaparai in I.A.No.147/2003 in O.S.No.196/2002, dated 25.2.2003, refusing to set aside the ex-parte decree passed on 9.12.2002.
2. The petitioner is the defendant in the suit. The respondents/ plaintiffs filed a suit in O.S.No.196/2002 for declaration that they are the absolute owners of the suit property and for permanent injunction. The suit was posted on 9.12.2002 for filing written statement. Since nobody appeared for the defendant nor filed written statement on 9.12.2002, the suit was decreed ex-parte To set aside the said order, the petitioner filed I.A.No.147/2003. He has also filed written statement and necessary documents along with the affidavit filed in support of the said Application.
3. The said Application was contested by the respondents/plaintiffs.
4. The trial Court has not accepted the reason given to set aside the ex-parte decree and also found that the petitioner/defendant cannot be allowed to file written statement beyond 90 days from the date of service of summons in the suit. On the basis of the said findings, the said Application was rejected by the court below. Hence this Revision Petition.
5. In this Revision Petition, we have to decide the following:-
(1)Whether the petitioner/defendant has given sufficient reason to set aside the ex-parte decree?
(2) Whether the court below is correct in coming to the conclusion that it has no power to receive the written statement filed, after 90 days from the date of service of summons in the suit?
6. I am inclined to deal with the second question first. Before amending Order 8, under the Act 46 of 1999, no time limit was contemplated either under Order 8 Rule 1 or under Order 8 Rule 9 of the Code of Civil Procedure for filing written statement. With a view to expedite disposal of the civil suits and proceedings so that justice may not be delayed, the said Act, namely, the Act 46 of 1999 was passed amending various provisions in the Code. After the said Act, a large number of representations were received against its enforcement, the Government had considered all the aspects after consulting the Bar Council of India and others concerned and based on the outcome of the deliberations, it is proposed to further amend the Code in consistent with the demands of fair play and justice. Accordingly, the Act 22 of 2002 was passed . The provisions in question are also amended.
7. To decide the same, it is beneficial to extract the relevant provisions under Order 8 of the Code of Civil Procedure as it stands now.
8. Order 8, Rule 1 of the Code, which deals with written statement, as amended, by Act 46 of 1999 and Act 22 of 2002 reads as follows:-
(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 third 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 of summons)
9. Order 8, Rule 5(2) of the Code gives power to the court to pronounce judgment on the basis of the facts contained in the plaint, if the defendant has not filed pleading, and Order 8, Rule 5(2) of the Code reads as follows:-
"5. Specific denial:- (1) .. ...
(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved."
10. The next relevant provision is Order 8, Rule 9 of the Code, which deals with the subsequent pleadings, reinserted by Act 22 of 2002 with effect from 1.7.2002 with modification, though the said Rule along with Rule 10 was omitted from the Code by Act 46 of 1999. The said Rule 9 reads as follows:-
"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."
11. Similarly, Order 8, Rule 10 of the Code deals with the procedure to be followed by the Court when the party fails to present written statement called for by Court, which reads as follows:-
"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 thinks fit and on the pronouncement of such judgment a decree shall be drawn up."
12. Since Order 8, Rule 1 of the Code fixes time limit from the date of service of summons, it is necessary to extract Order 5, Rule 1 of the Code also, as amended under Act 22 of 2002, which reads as follows:-
"1.Summons:- (1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant;
Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiff's claim; provided further 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 h shall not be later than ninety days from the date of service of summons"
13. Even to extend the period beyond 30 days as contemplated under Order 8, Rule 1 of the Code, Applications are being filed only under Sec.148 of the Code, which deals with enlargement of time and reads as follows:-
"148.Enlargement of time:- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, (not exceeding thirty days in total) even though the period originally fixed or granted may have expired."
14. On a reading of the above said provisions, one can come to two different conclusions. First is that if the defendant fails to file written statement within the period of 30 days from the date of service of summons, Court may permit, for the reasons recorded on the petition filed by the defendant, to file written statement on some other day, but the outer limit is 90 days from the date of service of summons. That means, after 90 days, the defendant should lose his right to file written statement and the court can deliver the judgment in his suit.
15. The other possible conclusion is, though such time limit is contemplated, the Court can exercise its power under Sec.148 of the Code or under the second portion of Order 8, Rule 9 or under Rule 10 of the Code, to extend the time beyond 90 days to present the written statement. This conclusion is possible on the basis that the Code of Civil Procedure is the procedure designed to facilitate justice and further its end and not a penal enactment for punishment and penalty and we must construe the said provision not too technically.
16. To arrive at proper conclusion, we have to find out whether Order 8 of the Code is a mandatory provision or directory. If it is mandatory, the first conclusion could be sustained. If Court has no power to extend time even in cases of non-compliance for reasons beyond the control of the party or advocate, time should not be extended. If it is directory, the Court can condone the delay and/or extend the time in cases of non-compliance within the time for the reasons beyond the control of the party or the advocate if it has power to extend the time. Even if the Court has power to extend time, in case of wilful, gross or deliberate default, the Court may refuse to extend the time.
17. A mandatory provision in a statute is one, which renders the proceedings illegal and void on omission to comply with the same strictly, while directory provision is one where the substantial compliance of which is sufficient to validate the proceeding. The other test which can be employed to determine whether the provision is mandatory or directory in character, is whether non-compliance of the particular provision causes inconvenience or injustice and if it does then the Court would say that that provision must be complied with and that it is mandatory in character.
18. Whether the statute is mandatory or directory, it depends upon the intent and object of the legislature and not upon the language or upon its form. For ascertaining the real intention of the legislature, the Court has to consider inter alia the nature and design of the statute and the conclusion which would follow from construing it one way or the other. If the object or intent of law is to be defeated by non-compliance with it, it should be considered as mandatory and if serious inconveniences will be created to innocent persons without very much furthering the object of enactment, the same has to be construed as directory. The circumstances, namely, the noncompliance with the provision is or is not visited by some penalty or the serious or trivial consequences that flows therefrom; and above all the object of the legislature will be defeated or furthered, are also to be considered.
19. The Apex Court, in the decision in Sharif-ud-Din v. Abdul Gani, AIR 1980,S.C. 303, while dealing with the question whether a Rule is mandatory or directory, held as follows:-
"9. The difference between a mandatory rule and a directory rule is that while the former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the rule is enacted. Certain broad propositions which can be deduced from several decisions of courts regarding the rules of construction that should be followed in determining whether a provision of law is mandatory or directory may be summarised thus: The fact that the statute uses the word 'shall' while laying a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who has no control over the performance of the duty, such provision should be treated as a directory one. Where however a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner, the former has to be regarded as a mandatory one. A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on, another rule would be contravened. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that a failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow."
20. Even in the decision in Top line Shoes Ltd., v. Corporation Bank, 2003-1 L.W. 137, while construing the scope of the provision of Sec.13(2)(a) of the Consumer Protection Act, the Apex Court held as follows:-
"8. The Statement of Objects and Reasons of the Consumer Protection Act, 1986 indicates that it has been enacted to promote and protect the rights and interests of consumers and to provide them speedy and simple redressal of their grievances. Hence, quasi-judicial machinery has been set up for the purpose, at different levels. These quasijudicial bodies have to observe the principles of natural justice as per Clause (4) of the Statement of Objects and Reasons, which reads as under: "To provide speedy and simple redressal to consumer disputes, a quasi-judicial machinery is sought to be set up at the District,State and Central levels. These quasi-judicial bodies will observe the principles of natural justice and have been empowered to given relief of a specific nature and to award, wherever appropriate, compensation to consumers. Penalties for non-compliance of the orders given by the quasi-judicial bodies have also been provided." (emphasis supplied)
9. Thus the intention to provide a time frame to file reply, is really meant to expedite the hearing of such matters and to avoid unnecessary adjournments to linger on the proceedings on the pretext of filing reply. The provision however, as framed, does not indicate that it is mandatory in nature. In case the extended time exceeds 15 days, no penal consequences are prescribed therefor. The period of extension of time" not exceeding 15 days", "does not prescribe any kind of period of limitation. The provision appears to be directory in nature, which the consumer forums are ordinarily supposed to apply, in the proceedings before them. We do not find force in the submission made by the appellant, in person, that in no event, whatsoever, the reply of the respondent could be taken on record beyond the period of 45 days. The provision is more by way of procedure to achieve the object of speedy disposal of such disputes. It is an expression of " desirability" in strong terms. But it falls short of creating of any kind of substantive right in favour of the complainant by reason of which the respondent may be debarred from placing his version in defence in any circumstances whatsoever. It is for the Forum or the Commission to consider all facts and circumstances along with the provisions of the Act providing time frame to file reply, as a guideline, and then to exercise its discretion as best it may serve the ends of justice and achieve the object of speedy disposal of such cases keeping in mind principles of natural justice as well. The Forum may refuse to extend time beyond 15 days, in view Section 13(2)(a) of the Act but exceeding the period of 15 days of extension, would not cause any fatal illegality in the order."
21. The word 'shall' is used in Order 8, Rule 1, Order 8 Rule 9 and Order 8 Rule 10 of the Code. It is not necessary to mean it in a mandatory sense in every case where the said word is present in a statute, but it depends upon the purpose and object of the enactment in making such provision. Moreover, a procedural Rule ordinarily should not be construed as mandatory.
22. The Apex Court in the decision in State of U.P. v. Manbodhan Lal, AIR 1957 S.C. 912, had an occasion to deal with the scope of Order 41, Rule 27 of the Code and it ultimately held that the said provision is only directory and while doing so the following observation was made:-
"(11) An examination of the terms of Art.320 shows that the word " shall"
appears in almost every paragraph and every clause or subclauses of that article. If it were held that the provisions of Art.320 (3) (c) are mandatory in terms, the other clauses or sub-clauses of that article, will have to be equally held to be mandatory.
If they are so held, any appointments made to the public services of the Union or a State,without observing strictly, the terms of these sub-clauses in cl.(3) of Art.320, would adversely affect the person so appointed to a public service, without any fault on his part and without his having any say in the matter.
This result could not have been contemplated by the makers of the Constitution. Hence the use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that is to say, that unless the words of the statute are punciliously followed, the proceeding or the outcome of the proceeding, would be invalid.
On the other hand, it is not always correct to say that where the word "may" has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceeding invalid. In that connection, the following quotation from Crawford on 'Statutory Construction' -Art.261 at p.516, is pertinent: 'The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other...' "
23. While construing the scope of U.P. Police Regulations as to whether a direction given therein is mandatory or directory, the Apex Court in the decision in State of U.P. v. Babu Ram, AIR 1961 S.C. 751, held as follows:-
"(29) The relevant rules of interpretation may be briefly stated thus: When a statute uses the word "shall", prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statutes provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered."
24. The same view is taken in the decision in Ganesh Prasad SahKesari v. lakshmi Narayan Gupta, (1985)3 SCC 53, by the Apex Court, holding as follows:-
"9. Mrs. Gyan Sudha Misra, learned counsel however contended that where the expression 'may' and 'shall' both are used in the same provision the legislative intendment is unmistakable that the provision where the word 'shall' is used must be held to be mandatory because the previous use of the expression 'may' shows that the legislature was conscious, which part of the provision is to be directory and which other part to be mandatory. She relied upon a statement in Maxwell on the Interpretation of Statutes, Twelfth Edn., page 282 wherein it is stated relying upon the decision in R. V. Inhabitants of Great Bolton, (1828) 8 B&C 71, 74 that "where the legislature in the same sentence uses different words, we must presume that they were used in order to express different ideas". Obviously where the legislature uses two words 'may' and 'shall' in two different parts of the same provision prima facie it would appear that the legislature manifested its intention to make one part directory and another mandatory. But that by itself is not decisive. The power of the court still to ascertain the real intention of the legislature by carefully examining the scope of the statute to find out whether the provision is directory or mandatory remains unimpaired even where both the words are used in the same provision. In Govindlal Chhagganlal Patel v. Agricultural Produce Market Committee, Godhra, (1976) 1 SCR 451 : (1975) 2SCC 482, Chandrachud, C.J., speaking for the Court approved the following passage in Crawford on 'Statutory Construction' (Ed.1940, Art. 261, p.516 ) : (SCC p. 487, para 13) The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also while considering its nature, its design, and the consequences which would follow from construing it the one way or the other. Applying this well-recognised canon of construction the conclusion is inescapable that the word used 'shall' in the provision is directory and not mandatory and must be read as ' may'."
25. Even in the recent decision of the Apex Court in Shibu Chandra Dhar v. Pasupati Nath Auddya, (2002)3 SCC 617, while construing the scope of Sections 17-A and 17-B of West Bengal Premises Tenancy Act, 1956 held that though in the provisions the word "shall" is used, on a conjoint reading, it should mean "may", the Court has power to extend the time, it has to be exercised judiciously.
26. The above view is supported by the decision of the Apex Court in Siraj-Ul-Haq v. S.C. Board of Waqf, AIR 1959 S.C. 198, holding as follows:-
"(16) ... It is well settled that in construing the provisions of a statute courts should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective; an attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute. ..."
After referring the judgments reported in Chaturbhuj Mohanlal v. Bhicam Chand, 53 Cal WN 410; Mathu Kutty v. Varee Kutty, AIR 1950 Mad 6 4; lal Chand v. Messrs. Basanta Mal Devi Dayal, 49 Pun LR 246, the Apex Court has held as follows: (17) ... These decisions illustrate the principle that where the literal meaning of the words used in a statutory provision would manifestly defeat its object by making a part of it meaningless and ineffective, it is legitimate and even necessary to adopt the rule of liberal construction so as to give meaning to all parts of the provision and to make the whole of it effective and operative."
27. From the discussions made in the decisions cited above, even if the word 'shall' is used in the Code, it cannot be construed that the time limit mentioned under Order 8 of the Code is mandatory.
28. Before dealing with the scope of the provisions in question, I would like to extract the judgments of the Apex Court given while considering the scope of similar provisions prescribing time limit.
29. While construing the scope of power of the High Court to extend the time provided under Order 47, Rule 7 of the Code of Civil Procedure, under which specific period was given for furnishing security, the Apex Court in the decision in Shew Bux v. SM. Tulsimanjari Dasi, 19 61 S.C. 1453 held as follows:-
"(4) There can be no doubt, that the object of the amendment was to expedite the final decision of the appeals which were taken before the Privy Council, and so the restrictive words have now been introduced whereby the period prescribed by the first part of the rule cannot be extended beyond 150 days;
but, does the use of these restrictive words indicate that there is no restriction in the High Courts to extend period for a sufficient cause? Having regard to the fact that even before the amendment the period of six months had been indicated it seems somewhat difficult to hold that by restricting the period to 15 0 days by the use of the restrictive words the Legislature had intended to take away the pre-existing jurisdiction of the High Courts to extend the period for a reasonable cause. The jurisdiction to enlarge the period for a good cause shown could not have been intended to be taken away by implication merely by the use of the restrictive clause introduced in the amendment.
(5) Besides, it is significant that even after the amendment there is no specific provision which provides for the effect of failure to comply with O.45, R.7. Rule 8 with cases where security has been furnished and deposit made, and it provides that on the security being furnished and deposit made the Court shall declare the appeal admitted, give notice thereof to the respondent, transmit to the Supreme Court the record as therein provided, and give to either party one or more authenticated copies as specified. There is no rule which prescribes the consequence of non-compliance with the order made under R.7. Failure to make this provision is not without significance because r.11 expressly provides for the effect of failure to comply with the order made under r.10. In other words, where the Court makes an order calling upon the appellant to furnish within a time to be fixed by it other and sufficient security, or to make within like time the required payment, and the appellant fails to comply with the said order, r.11 expressly provides that on such failure of the appellant the proceeding shall be stayed the appeal shall not proceed without an order in that behalf of the Supreme Court and in the meantime execution of the decree appealed from shall not be stayed. It would thus be seen that where the Legislature intended that failure to comply with a specific order should lead to the consequence of a specific result it has made an appropriate provision in that behalf, and so failure to make any such provision in regard to the consequence of compliance non-compliance with the order made under r.7 may suggest that the jurisdiction of the court to extend time was not intended to be taken away. Since it is open to the Court to extend time the Legislature may have thought that it should be left to the discretion of the Court to decide whether the failure to comply with its order under r.7 should be condoned and the period extended for furnishing security, or whether the default should not be condoned and the certificate should therefore be cancelled. In our opinion, therefore, reading O.45, r.7 as amended along with the other relevant provisions of the said Order it would be difficult to hold that the High Court has no jurisdiction to extend time for furnishing security under the said rule. High Courts had jurisdiction to extend time prior to the amendment of 1920 has made no difference in that behalf."
30. In the recent decision of the Apex Court in Salem Advocate bar Assocn., Tamil Nadu v. Union of India, AIR 2003 S.C. 189, while construing the provisions of the Code of Civil Procedure regarding the time limit fixed therein, it is held as follows:-
"6. Amendment has been made to Section 27 dealing with summons to the defendant which, after the amendment, reads as follows: "summons to Defendants
- Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in the manner prescribed on such day not beyond thirty days from the date of the institution of the suit."
7. It was submitted by Mr. Vaidyanathan that the words "on such day not beyond thirty days from the date of the institution of the suit" seem to indicate that the summons must be served within thirty days of the date of the institution of the suit. In our opinion, the said provisions read as a whole will not be susceptible to that meaning. The words added by amendment, it appears, fix outer time frame, by providing that steps must be taken within thirty days from the date of the institution of the suit, to issue summons. In other words, if the suit is instituted, for example, on 1st January, 2002, then the correct addresses of the defendants and the process fee must be filed in the Court within thirty days so that summons be issued by the Court not beyond thirty days from the date of the institution of the suit. The object to avoid long delay in issue of summons for want of steps by the plaintiff. It is quiet evident that if all that is required to be done by a party, has been performed within the period of thirty days, then no fault can be attributed to the party. If for any reason, the Court is not in a position or is unable to or does not issue summons within thirty day, there will, in our opinion, compliance with the provisions of Section 27 once within thirty days of the issue of the summons the party concerned has taken steps to file the process fee along with completing the other formalities which are required to enable the Court to issue the summons."
31. While dealing with the scope of laws of procedure, the Apex Court in the decision in Sangram Singh v. Election Tribunal, Kotah, A.I. R. 1955 S.C. 425, held as follows:-
"(16) Now a code of procedure must be regarded as such. It is ' procedure', something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it. (17) Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle."
32. The Code of Civil Procedure relates to the procedure of civil jurisdiction. The Code of civil procedure contains law relating to the procedure in suits and civil proceedings. On the basis of the above principles laid down in the decided cases, we have to now deal with the issue in question. As held in Manohar Lal v. Seth Hiralal, AIR 1 962 S.C. 527, the Code is not exhaustive as the legislature is incapable of contemplating all possible circumstances which may arise in future litigation and consequently for providing procedure for them. The procedure contemplated under the Code is designed to facilitate justice and further ends, not the penal enactment for punishment and penalties and not a thing designed to trip the people up. The Code deals with procedural matter and not with substantive right. The provisions under the Code of Civil Procedure are grounded on principles of natural justice. The object of the proposed amendment fixing the period for filing written statement is only to see the pleadings are completed so as to enable the court to proceed with the suit and decide the matter as early as possible. Such amendment was needed only to avoid the attitude of the parties from taking adjournments for filing written statement any length of time. Some of the courts granted time for asking without even applying their mind whether such a time is sought for on genuine grounds. Only to prevent such mischief, the legislature had thought it fit to amend the provision prescribing time limit within which written statement is to be filed, and taken away the unlimited power of the court to grant time for filing written statement. From the above, it is clear that the object of the amendment is only to have speedy disposal of the suits by providing a time frame to file written statement. As observed earlier, the above said amendment is only a procedure and not visited by any penalty or serious or trivial consequences, if the written statement is not filed within 90 days from the date of receipt of the summons.
33. One can refer to Order 8, Rule 5(2), or Order 8, Rule 10 of the Code, to say that the court shall pronounce the judgment against the defendant who has not filed the written statement. But the scope of the said provisions cannot be appreciated in that way. The power of the court to render judgment mentioned under the said provision is not automatic in the event of failure in filing written statement on the part of the defendant. Merely because the defendant did not file written statement in time, it does not create any substantive right on the plaintiff to get the judgment in his favour irrespective of the merits in his case, as the court is to give judgment on merits of the plaintiff's case. 34. This view of mine is supported by the decision in Modula India v. Kamakshya Singh Deo, AIR 1989 S.C. 162. The Apex Court while dealing with the scope of Order 8 of the Code, held as follows:-
"An objection to our above conclusion has been raised on the basis of the provisions of Order VIII of the Code of Civil Procedure. Rules 1, 5and 10 of this Order have been recently amended by the Amendment Act of 1976. We find nothing in these rules which will support the contention urged on behalf of the respondents. Rule 1 merely requires that the defendant should present a written statement of his defence within the time permitted by the Court. Under Rule 5(2), where the defendant has not filed a pleading it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint except against a person under disability but the Court may in its discretion require any such fact to be proved. Again under Rule 10 when any party from whom a written statement is required fails to present the same within the time permitted or fixed by the Court, the Court "shall pronounce judgment against him or make such order in relation to the suit as it thinks fit." It will be seen that these rules are only permissive in nature. They enable the Court in an appropriate case to pronounce a decree straightway on the basis of the plaint and the averments contained therein. Though the present language of Rule 10 days that the Court "shall" pronounce judgment against him, it is obvious from the language of the rule that there is still an option with the Court either to pronounce judgment on the basis of the plaint against the defendant or to make such other appropriate order as the Court may think fit. Therefore, there is nothing in these rules, which makes it mandatory for the Court to pass a decree in favour of the plaintiff straightway because a written statement has not been filed. Reference was made before us to sub-rule (1) of Rule 5. This sub-rule, however, has application only in a case where a pleading is filed but does not contain a specific or implicit denial of the averments contained in the plaint or other document to which it is a reply. Rule 5(1) cannot be made use of to sustain the contention that where there is no written statement the Court is bound to accept the statements contained in the plaint and pass a decree straightway. These provisions of the Code of Civil Procedure, far from supporting the contentions of the plaintiff that a decree on the basis of the plaint should follow a failure to file the written statement, rather indicate a contrary position, namely, that even in such cases, it is a matter for the Court to exercise a discretion as to the manner in which the further proceedings should take place. We, therefore, do not think that the terms of Order VIII in any way conflict with the conclusion reached by us."
35. Similarly, in the decision in Balraj Taneja v. Sunil Madan, (199
9)8 SCC 396, the Apex Court held as follows:-
"29. As pointed out earlier, the court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court. In a case, specially where a written statement has not been filed by the defendant, the court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possible be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression "the court may, in its discretion, require any such fact to be proved" used in sub-rule (2) of Rule 5 of Order 8, or the expression may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8."
36. From the above said decisions of the Apex Court, it is clear that there is no penal consequences for not filing written statement, within the time stipulated. It is not the object of the Code to prevent any person from exercising his right to defend his case effectively. So, we can safely come to the conclusion that Order 8 of the Code cannot be construed as mandatory.
37. Under Order 8, Rule 1 of the Code, the defendant is having right to file written statement within 30 days from the date of receipt of summons. Thereafter, he loses his right, as he cannot compel the Court to receive the written statement. It is for the Court to enlarge the time up to 90 days as contemplated under Order 8, Rule 1 of the Code. Such an extension can be done only on valid and sustainable reasons.
38. Now the question is whether the Courts are having power to extend the period even beyond 90 days. To sustain such power to the Court, we have to look into the provisions of Order 8, Rules 9 and 10 of the Code. While amending Or.5, R.1 and Or.8 Rule 1 of the Code, the legislature did not think it fit to amend correspondingly the latter part of the provision of Or.8 R9 or Or.8 R.10. The second part of Rule 9 gives power to the Court to call upon the defendant at any time to file a written statement or additional written statement. But the Court can give only 30 days time for presenting the same from the date of order. There is no specific bar contemplated under the said provision as to when such order has to be passed. The above said provision clearly establishes that before delivering judgment, at any time, the Court can call upon the defendant/defendants to file written statement or additional written statement. The only restriction is the Court can give only 30 days time.
39. Rule 10 of the Code gives power to the Court to pronounce judgment if the defendant did not file written statement within the time permitted under the Code or fixed by the Court. But the said Rule does not stop with that. It gives power to the Court even to make such order in relation to the suit as it thinks fit. The Bombay High Court in the decision in Vimalkumar Nathmal Goenka v. Vinod Kumar Nathmal Goenka, AIR 1999 Bombay 55, while dealing with the said Rule held as follows:-
"8. In order to consider the issue in question, it will be meaningful to consider purport of Order VIII Rule 10 of the Code of Civil Procedure. There is no difficulty in coming to the conclusion that Rule 1 0 gives discretion to the Court and the Curt can permit the defendant to file written statement at any stage prior to pronouncement of judgment. Plain reading of Rule 10 makes it clear that the Court can either pronounce judgment against the defendant in the absence of written statement or pass any order as it thinks fit. In view of the above referred legal position vis a vis Rule 10 of Order VIII of Code of Civil Procedure, the trial Court could have exercised discretion even at the stage when ex 0parte hearing was concluded and matter was fixed for delivery of judgment on 29.12.1997. however, in the instant case, admittedly the same had not been done by the trial Court and the matter was posted for passing necessary orders on the applications (Exhs.50 and 51) preferred by the applicant. Since judgment was not pronounced in the matter by the trial Court on the date on which it was fixed for pronouncement of judgment, i.e., 29.12.1997 and the matter was adjourned for passing necessary orders on Exhs.50 and 51, it cannot be said that the trial court had exhausted the jurisdiction vested in it as per Order VIII, Rule 10 of Code of Civl Procedure, nor can it be construed that the trial Court had no jurisdiction to accept the written statement. In the present case, the trial Court did not reject Exh.50 on 29.12.1997 and did not pronounce judgment on 29.12.1997 (date fixed for delivery of judgment) and adjourned the matter to a future date. The entire exercise undertaken by the trial Court clearly shows that it did not exercise jurisdiction vested in it by the first part of Order VIII, Rule 10 of Code of Civil Procedure, i.e., by pronouncing the judgment on failure to file written statement as required under Order VIII, Rule 1 of Code of Civil Procedure. The present case would fall within the ambit of latter part of Rule 10 of Order VIII of Code of Civil Procedure, i.e., "or make such order in relation to the suit as it thinks fit". Hence once the case/ suit was adjourned to a future date, it is impliedly clear that the trial Court had exercised discretion contemplated in the above referred latter part of Rule 10 of Order VIII of Code of Civil Procedure. It is, therefore, not possible in the facts and circumstances of the present case to hold that the trial Court was not competent to accept written statement filed by the original defendant No.3."
40. Similarly, the Calcutta High Court also in the decision in Ramesh Chandra v. Corporation of Calcutta, AIR 1987 Cal.111, held as follows:-
"7. On perusing the R.10 of O.8 carefully, I have no doubt in my mind that R.10 gives discretion to the Trial Court to permit the defendant to file written statement at any stage prior to the pronouncing of judgment. Under R.10 the court can either pronounce judgment against the defendant for his failure to file written statement or pass any order as it thinks fit. When such a discretion is given the court can very well exercise its discretion even at the stage when the ex parte hearing was concluded and the court had fixed a date for delivery of judgment. I am unable to accept the contention of the learned Advocate of the petitioner, that the impugned order dated 10th December, 1982 is is illegal and invalid. In my view the Trial Court had the jurisdiction under O.8, R.10, Civil P.C., to accept the written statement even at that stage. When the learned Trial Court exercised its jurisdiction and decided to accept the written statement so that there could be contested hearing of the suit, I am not inclined to interfere with that order under S.115,Civil P.C., in the result, the application under S.115, Civil P.C., is dismissed and the Rule is discharged. There will be no order as to costs."
41. Learned counsel appearing for the respondents relying on the decision of the Apex Court in J.J. Merchant v. Shrinath Chaturvedi, AIR 2002 S.C. 2931, submitted that the Apex Court found that time limit contemplated under Order 8 Rule 1 of the Code has to be followed strictly and so the Court cannot have any discretion to extend the period. No doubt, the Honourable Judges of the Apex Court while dealing with Sec.13 of the Consumer Protection Act, 1986, observed that the Consumer Forum has to follow strictly the maximum time limit fixed for filing the version by the opposite party. While dealing with the scope of Sec.13, the Hon'ble Judges relied on Order 8 Rule 1 of the Code of Civil Procedure as an analogy. So, the said observation of the Hon'ble Judges of the Apex Court in the said decision cannot be taken as it is with reference to the scope of Order 8 Rule 1 of the Code itself. Moreover, the scope of Order 8 Rule 1 of the Code is not the issue in the said case before the Apex Court. That is why the Hon'ble Judges have not taken into consideration Order 8, Rules 5(2), 9 and 10 of the Code, as no such provisions are available in the Consumer Protection Act. So, the said decision cannot be relied on to decide the present issue. 42. So, in view of the power given under Order 8, Rules 9 and 10 of the Code, it cannot be said that the Courts have no power to permit the defendant to file written statement even in cases posted for judgment. The above said provisions give power to the Courts to receive written statement before pronouncing judgment in cases posted for judgment on the basis that the defendant did not file written statement.
43. The above said view of mine is supported by the recent decision of the Karnataka High Court in A.V.Purushotam v. N.K.Nagaraj, (2003)7 ILD 737(KAR.)
44. From the above discussion, we can safely come to the conclusion that the Courts, before pronouncing judgment, on the failure of the defendant to file written statement within the stipulated period, can receive the written statement if they find that such a defence has to be received to render justice and on valid and acceptable grounds, for not filing the written statement within the stipulated time, notwithstanding the expiry of the period mentioned in Order 8, Rule 1 or Order 5, Rule 1 of the Code, exercising power under Sec.148 of the Code or under the latter part of Order 8, Rule 9 or Rule 10 of the Code. But receiving such a written statement beyond the stipulated period is only an exception, as the filing of the written statement within the stipulated time is the Rule. While exercising such a power to receive the written statement beyond the period, the Courts should be very careful in exercising their judicial discretion. If the Courts are allowed to exercise such a power liberally or without any basis, then it will be against the intention and the object of the legislature in bringing out the amendment. The judicial discretion of the Courts has to be exercised sparingly on valid grounds and only if the Court is satisfied that the defendant could not file the written statement for the reason beyond his control and such defence is absolutely necessary to decide the issue. The Court should not use such a discretion only with a view to give opportunity to the defendant to defend his case though he is not able to satisfy the Court regarding the reasons for the delay.
45. On the basis of the above discussion, now I am inclined to deal with the facts of the present case. The Court below has come to the conclusion that it has no power to receive the written statement even after the expiry of 90 days, so as to decide the Application to set aside the ex-parte decree, which cannot be sustained in view of the above discussion. The above said conclusion of the Court below with respect to the power to receive the written statement filed by the defendant is only to meet the averment of the petitioner that they have filed the written statement along with the petition and so it has to be received. The Court below has come to the conclusion that the reason given for not filing written statement, though sufficient opportunity was given on 11.10.2002, 15.11.2002 and on 9.12.2002, is nothing but false. On the basis of the said reasonings, the Court below refused to exercise its discretion which can not be said as without any basis and so I am not inclined to interfere with the order while exercising jurisdiction under Sec.115 of the Code of Civil Procedure.
46. For all the reasons stated above, this Revision is dismissed. No costs. C.M.P.No.3192/2003 is also dismissed.
8.8.2003 Index:yes/no Internet:yes/no sks To The District Munsif Court, Manaparai.
K.GOVINDARAJAN,J 8.8.03