Madhya Pradesh High Court
Bismilla Bee vs Arjuman Aara on 11 July, 2014
Equivalent citations: AIR 2015 (NOC) 96 (M.P.) (GWALIOR BENCH)
1 WP No.8528/2012
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
SB: Justice Sujoy Paul
WP No.8528/2012
Bismilla Bee
VS.
Arjuman Aara & Ors.
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Shri Abhishek Bhadoriya, Advocate for the petitioner.
Shri A.V. Bhardwaj, Advocate for the respondents No. 1 to 6.
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ORDER
( 11 / 07 / 2014) This petition filed under Article 227 of the Constitution challenges the order dated 12.10.2011 passed in COS No.73-A/2011. The Court below by the impugned order allowed the application dated 28.08.2012 (Annexure P/7) which was filed by the defendants No. 1 to 5 by imposing Rs.500/- as costs and permitted the said defendants to file their written statements.
FACTS :-
2. The petitioner instituted a suit for declaration of title and permanent injunction against the respondent / defendants. It was prayed therein that the plaintiff be declared as 1/5 share holder in the suit land after partition. Permanent injunction was also prayed for to restrain the defendants from alienating the property and from making any interference in joint possession of the plaintiff over the suit land.
The Court below issued notices to the defendants. Defendants entered appearance before the Court. Out of seven defendants, only defendants No. 6 and 7 filed their separate written statements. It is submitted by Shri Abhishek Bhadoriya that defendants No. 2 to 6 are real sisters and are represented before Court below through a common and single Advocate namely Shri L.N. Dandotiya. It is urged that said counsel is representing all the defendants continuously. Copies of order sheets indicating the same are filed as Annexure P/5.
2 WP No.8528/20123 In the said civil suit application filed under Order 39 Rule 1 & 2 C.P.C was decided in presence of defendants No. 1 to 6 and thereafter evidence of plaintiff was started and closed in the presence of defendants. Defendants were given due opportunity of cross- examination. Defendants No. 1 to 6 had cross-examined the plaintiff and her witnesses through the said counsel Shri Dandotiya. Copy of document showing said cross-examination is filed as Annexure P/6. After closing of the evidence of plaintiff, defendants No. 1 to 6 have started leading evidence. The affidavits under Order 18 Rule 4 C.P.C. of defendants No. 3 and 6 were submitted on 13.03.2012. The defendant No.3 has already been cross-examined and defendant No.6 is yet to be cross-examined. The grievance of the petitioner is that at this stage an application under Section 151 C.P.C dated 28.08.2012 was filed on behalf of defendants No. 1 to 5 seeking permission to file written statement. This application is Annexure P/7. The petitioner opposed the said application by filing reply (Annexure P/8).
4. Court below after hearing arguments on this application allowed the said application and permitted the said defendants to file written statement. Impugning this order, Shri Bhadoriya submtis that reasons mentioned in the application (Annexure P/7) cannot be basis for permitting them to file written statement at belated stage. He submits that after the amendment in Order 8 Rule 1 C.P.C in the year 2002, in mechanical manner permission to file written statement cannot be granted at belated stage. He further submits that any extension of time can be granted only in exceptional circumstances. It cannot be done in a routine and mechanical manner. He strenuously contended that factual backdrop of this matter makes it clear that defendants No. 1 to 5 were fully aware of the pendency of the civil suit. They entered appearance through a common counsel and therefore, reasons assigned by them in application Annexure P/7 are unjust, unreasonable and cannot be a ground for granting time to file written statement. In support of his contention, he relied on 2005 (4) SCC 480 ( Kailash Vs. Nankhu and Ors.), 2007 (6) SCC 420 ( R.N. Jadi & Borthers and Others) and 2009 (3) SCC 513 (Mohammad Yusuf Vs. 3 WP No.8528/2012 Faij Mohammad & amp, Ors). In addition, he riled on two unreported judgments of Delhi High Court on the same point.
5. Per Contra, Shri A.V. Bhardwaj, learned counsel for the respondents No. 1 to 6 submits that in view of judgment of Apex Court in Kailash (supra) it is clear that Order 8 Rule 1 C.P.C is directory in nature. Directory provisions are made to secure the ends of justice. Procedure and rules made for the said purpose are hand made of justice. Thus, a liberal view needs to be taken in such matters. The Court below has not committed any legal error in allowing the application Annexure P/7. Shri Bhardwaj relied on 2009(1) MPWN SN 34 ( Krishna Bai and others Vs. Arjun Singh and others) and 2013 (3) SC 594 for this purpose. Reliance on AIR 1984 SC 38 (Mohd. Yunus , Petitioner v. Mohd. Mustaqim and others) was made to contend that even an erroneous order need not be interfered with in Article 227 proceedings. No other point is pressed by the parties.
6. I have heard learned counsel for the parties and perused the record.
7. The order 8 Rule 1 C.P.C was amended with effect from 01.07.2002. In the statement of object and reasons of said amendment, it is mentioned that it is introduced " to reduce delay in disposal of civil cases." As per new text of Order 8 Rule 1 C.P.C. it is clear that it is drafted in order to cast obligation on the defendant to file written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. Object behind substituting order 8 Rule 1 C.P.C. is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. Pausing here for a moment, it is apt to examine the reasons assigned in the application filed under Section 151 C.P.C (Annexure P/7). It is stated in the said application that erroneously no opportunity is given by court to defendants No. 1 to 5 to file their 4 WP No.8528/2012 written statements. After deciding the application under Order 39 Rule 1 & 2 C.P.C, the suit is directly fixed for framing of issues and thereafter for recording of evidence. On 06.07.2012, the counsel for plaintiff raised objection that defendants No. 1 to 5 have not filed their written statements and on hearing that objection record was perused and then defendants came to know that written statement has not been filed by the defendants No. 1 to 5. On these grounds, permission was prayed for. The question is Whether the court below was required to fix the date for the purpose of filing written statement or whether party was obliged to file written statement on its own after receiving notices from the court below?
8. In the opinion of this Court, this point is dealt with in Kailash (supra) by the Apex Court. In para 42 the Apex Court opined that 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 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.
9. A plain reading of the finding in Kailash (supra) makes it clear that the defendant is obliged to take steps for drafting the defense and filing the written statement immediately upon receiving the writ of summons. This is not in dispute that defendants No. 1 to 5 had received the summons along with other defendants. It is not their 5 WP No.8528/2012 case put forth in Annexure P/7 that either summons were not served on them or were served belatedly. Thus, the contention that Court below had not granted any opportunity to them to file written statement runs contrary to legal position discussed above. At the cost of repetition, in my view whether or not the suit is fixed for filing written statement, it was obligatory on the part of defendant to take steps and file written statement without waiting for the arrival of the date appointed in the summons for his appearance in the court
10. In view of aforesaid, I am unable to hold that Court below in any manner deprived the defendants to file written statement in time. The second reason assigned in Annexure P/7 is totally untenable. Interestingly and admittedly, all the defendants were represented by a common counsel. The said counsel was fully aware as to for which defendants written statement have been filed and for which respondent he failed to file the same. I wonder, how this contention can be advanced that after the objection of plaintiff and on perusal of the record it was found by defendants No.1 to 5 that written statement is not filed by them. The counsel for defendants was the best person to know about factual status of filing of the written statement by the parties. The Court below after recording the reasons shown in Annexure P/7 held as under :-
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11. The core issue is whether reasons assigned by the Court below in permitting the defendants No. 1 to 5 to file written statement is in accordance with law? In the opinion of this court, this point is no more res integra. In Kailash (supra) Apex Court opined as under :-
"(v) Though Order 8 Rule 1 CPC is a part of procedural law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded Parliament to enact the provision in its present form, it is 6 WP No.8528/2012 held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for the asking, more so when the period of 90 days has expired.
Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the court on its being satisfied. Extension of time may be allowed if it is needed to be given for circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case."
(Emphasis supplied)
12. The Apex Court in no uncertain terms made it clear that although Order 8 Rule 1 C.P.C is part of procedural law and directory in nature, the permission to file written statement cannot be granted as a matter of routine and merely upon asking. The same view is taken by the Apex Court in 2005 (6) SCC 344 ( Salem Advocate Bar Association, T.N. Vs. Union of India). The Apex court opined that the provision of Order 8 Rule 1 providing for 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.
13. In (2007) 6 SCC 420 ( R.N. Jadi and Brothers and Ors. Vs. Subhash Chandra) the Apex Court opined as under:-
15. A dispensation that makes Order 8 Rule 1 directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasise that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension 7 WP No.8528/2012 of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order 8 Rule 1 must be adhered to and that only in rare and exceptional cases, will the breach thereof will be condoned. Such an approach by courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in courts. The lament of Lord Denning in Allen v. Sir Alfred McAlpine & Sons reported in (1968) 2 QB 229 that law's delays have been intolerable and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times?
14. In (2007) 14 SCC 431 ( Aditya Hotels (P) Ltd. Vs. Bombay Swadeshi Stores) the Apex Court opined that the extension of time can be granted by way of exception and for reasons to be recorded in writing. It is important to note that Apex Court opined that in no case the defendants be permitted to seek extension of time when there is laxity or gross negligence on the part of the defendant or his counsel. In the present case there is laxity or gross negligence on the part of defendants No. 1 to 5 or his counsel. Judgment of Kailash (supra) is again considered in 2014(2) SCC 302 ( Sandeep Thapar Vs. SME Technologies (P) Ltd.). In the opinion of this Court, the reasons assigned in Annexure P/7 cannot be treated as exceptional or justifiable reasons. The finding of the court below reproduced in para 10 above shows that trial court has found that there is laxity on the part of defendants No. 1 to 5. No exceptional or special reasons are recorded by the court below while granting opportunity to file written statements. This runs contrary to settled legal position. On the basis of reasons assigned, permission cannot be granted. The impugned order shows that Court has mechanically granted the permission much after 90 days.
15. Although Shri A.V. Bhardwaj stated that the procedural law is handmade of justice and lenient view need to be taken, it is suffice to say that this aspect is dealt with in Kailash (supra) by Supreme Court ( para 28 to 31). After considering those judgments, the Apex Court 8 WP No.8528/2012 opined that the time to file reply cannot be granted as a matter of routine or merely on asking. This view is constantly followed in other judgments mentioned above.
16. On the basis of aforesaid, in my view, the Court below has legally erred in allowing the application Annexure P/7. The impugned order dated 12.10.2011 is accordingly set aside. Application Annexure P/7 is rejected. Petition is allowed. No Costs.
(Sujoy Paul) Judge sarathe/-