Calcutta High Court
Sreeleathers Limited vs Pic Departmentals Pvt. Ltd on 22 March, 2024
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Ordinary Original Civil Jurisdiction
Original Side
Present :- Hon'ble Mr. Justice I. P. Mukerji
Hon'ble Mr. Justice Biswaroop Chowdhury
APO 147 of 2023
With
CS 549 of 1999
Sreeleathers Limited
Vs.
PIC Departmentals Pvt. Ltd.
For the Appellant :- Mr. Abhrajit Mitra, Sr. Adv,
Mr. Sarvapriya Mukherjee,
Mr. Sumanta Biswas,
Mr. S. N. Islam,
Mr. Bikash Shaw, Advs.
For the State/Respondent :- Mr. Surajit Nath Mitra, Sr. Adv.
Ms. Suparna Mukherjee, Mr. Arup Nath Bhattacharyya, Mr. Sarbajit Mukherjee, Ms. Sayani Das, Ms. Sreetama Biswas, Mr. Arya Bhattacharyya, Mr. Snehasish Dey, Ms. Shreyasee Basu, Advs.
Judgment On :- 22.03.2024 I. P. Mukerji, J.:-
Leave sought by the appellant defendant (the defendant) to file their written statement, after condonation of delay was refused by the learned single judge by the impugned judgment and order dated 12th June, 2023. The defendant appeals to this court.
The suit is of 1999. It was filed on 30th September, 1999. The writ of summons was served on the defendant on 28th January, 2000. They entered appearance on 3rd February, 2000. Although it is referred to in the impugned judgment and order that the defendant contested various interlocutory applications, the details are not forthcoming. What is on record is a status of the report of the suit dated 1st March, 2000 to the effect that the suit was "disposed of" on 1st March, 2000. According to them, having learnt that the suit was disposed of they did not feel it necessary to show any further interest in it.
It is common ground that the suit did not progress any further till 2017. On 17th January, 2017 the suit came up for trial.
Meanwhile, the advocate on record for the defendant changed. The present advocate on record noticed the matter in the list and informed his client. It seems to have been mentioned before the court that according to the status report the suit was disposed of on 1st March, 2000. The learned judge directed an inquiry into the matter. He sought a report from the Registrar (Listing). On 30th January, 2017 the report came. It confirmed the earlier report that the suit was according to the records disposed of on 1st March, 2000.
On 23rd February, 2017 the defendant made an application before the court to permit them to file their written statement. After condonation of delay in making the application it was dismissed by the impugned judgment and order dated 12th June, 2023.
The fact is that the application for condonation of delay to file the written statement was made more than 17 years after filing of the suit. So was the learned judge right in dismissing the application or should he have, after about 25 years of institution of the suit given permission to the defendant to file their written statement?
The learned judge proceeded to narrate the facts with regard to progress of the suit after filing of the plaint and the authorities dealing with condonation of delay in filing the written statement. The reasons why the delay was uncondonable are not forthcoming in the impugned judgment. It only says that there is "no justifiable delay"; the delay is "of 23 years". Why the explanation of the defendant was not being accepted by the court is not forthcoming in the judgment. The learned judge has only expressed his inability to condone "23 years delay". 2 After disposal of the application the suit was directed to appear on 5th July, 2023 as an undefended suit.
Mr. Abhrajit Mitra, learned senior advocate, appearing for the appellant/defendant contended that there was no lack of diligence on the part of his client. Neither was there any intention to delay the suit or to defeat the claim of the plaintiff. His client had all along proceeded on the basis of the status report that the suit had been disposed of on 1st March, 2000. Hence, they did not take any steps.
Mr. Surajit Nath Mitra, learned senior advocate, appearing for the respondent/plaintiff (the plaintiff) submitted that the status report may have been generated on 1st March, 2000 but the fact was that in spite of entering appearance on 3rd February, 2000, the defendant did not file their written statement by the stipulated time which was 21 days from the date of issue of the writ of summons (28th January, 2000) i.e. by 18th February, 2000. At that time there was no existence of the status report. Before proceeding any further, it is important to discuss the law and the authorities on the subject.
Chapter IX Rule 2 of the Original Side Rules states that no written statement shall be filed unless appearance has been first entered. Furthermore, no written statement shall be allowed to be filed after expiry of the time provided in the writ of summons or any rule or any order unless permitted by an order of the court obtained by summons in chamber taken out prior to the expiry of such time.
Order 38 Rule 46 clothes the court with the power to enlarge the time prescribed by the rules "as the justice of the case may require" and such extension can be made even when the application for extension of time has been made after expiry of such time.
First of all, reference may be made to the case of Mohd. Mehtab Khan and Ors. vs. Khushnuma Ibrahim Khan & Ors. reported in (2013) 9 SCC 221 3 where the Supreme Court following Wander Ltd. and Anr. vs. Antox India Pvt. Ltd. reported in (1990) Supp. (1) SCC 727 ruled that when the impugned order involved exercise of discretion by the trial court, the appellate court should not ordinarily interfere with it unless the order was "palpably incorrect or untenable". Citing this decision, Mr. Surajit Nath Mitra submitted that this court should not interfere with the discretion exercised by the learned trial judge in refusing to permit the defendant to file their written statement.
In that case, the court was concerned with an interim order of injunction. The suit had been filed under Section 6 of the Specific Relief Act where an interim order was sought by the plaintiff to be put back into possession which was refused by the first court but granted by the High Court. In dealing with the discretion of the court whether to grant or refuse injunction, the court had reiterated its view in Wander Ltd. and Anr. vs. Antox India Pvt. Ltd. that in such matters the appellate court would not interfere with the exercise of discretion by the court below. In this case, we are not concerned with any grant or refusal of grant of injunction, which is usually in the nature of an interim order on considering the prima facie case, the balance of convenience and irretrievable injury factor. Here, the appellate court is called upon to adjudge finally whether a very substantive right of the defendant of filing the written statement and contesting the suit, has been erroneously taken away by the trial court? The appeal is a continuation of the trial court proceedings and the appellate court has the powers under Order 41 Rule 33 of the Code of Civil Procedure to affirm, reverse or vary any order passed by the court below. In such a case, the appellate court has all the powers of the trial court. In Basawaraj and Anr. vs. Special Land Acquisition Officer reported in (2013) 14 SCC 81, the Supreme Court first of all made a difference between good cause and sufficient cause by holding that the weight of evidence required to establish sufficient cause was higher than what was 4 required to establish good cause. The court should not act as a court of equity and keep on condoning delay which would amount to setting its own period of limitation. To establish sufficient cause, a party had to prove absence of negligence or bona fides.
Mr. Mitra cited Atcom Technologies Limited vs. Y.A. Chunawala and Company and Ors. reported in (2018) 6 SCC 639 where the Supreme Court did not approve of the High Court's condonation of the inordinate delay of the defendant in filing the written statement. The court was dealing with Order 8 Rule 1 of the Code of Civil Procedure. It was after amendment of that rule which limited the time for filing written statement to not later than 90 days from the date of service of summons. The court noted that after this amendment, time could be extended only in "exceptionally hard cases". Bearing the above principle in mind, the Supreme Court disapproved extension of time to file the written statement by the defendant.
First of all, this suit is of 1999 before amendment of Order 8 Rule 1. Therefore, the rights and liabilities of the parties before the date of amendment of the code were preserved or in any event, the above provision should not have been so strictly enforced, especially when, later judgments of the Supreme Court have held the provision of Order 8 Rule 1 of the Civil Procedure Code to be directory. The court retained its power to extend time. Thirdly, Chapter 38 Rule 46 read with Chapter 9 Rule 2 of the Original Side Rules has primacy over the Code and empowers the court to extend the time to file written statement. (See Section 4 of the Code read with Howrah Motor Co. Ltd. Vs. Exide Industries Ltd. reported in (2006) 4 CHN 271). Now, let us analyse the facts of this case.
The suit was filed on 30th September, 1999. The writ of summons was served on the appellant defendant on 28th January, 2000. They entered appearance on 3rd February, 2000. As is usual, 21 days' time was 5 prescribed for the defendant to file their written statement. The writ of summons having been received on 28th January, 2000, the time to file the written statement expired on 18th February, 2000.
The moment the 21 days' time expired and the defendant had not filed their written statement, the plaintiff could have approached the Registrar, Original Side, High Court to issue a certificate to the effect that no written statement had been filed on the expiry of time to do so. On the basis of such certificate they could have taken steps to list the suit as an undefended suit and obtained a decree. The registry of this court also could concurrently, on its own put up the suit in the warning list of undefended suits to be next transferred to the peremptory list. The registry took no such steps. Neither the plaintiff took any step to compel the registry to adopt the above measure. They kept quiet and allowed the plaint to lie in the department without any progress whatsoever in the suit. There is nothing on record to show that any interlocutory application in aid of the suit was moved after 2000.
In the circumstances, the parties are in the same position they were at the time of filing of the suit. It cannot be said that any change of position of the respondent plaintiff would now be caused by the appellant defendant being allowed to file their written statement. Or in other words no prejudice would be caused to them if such opportunity is allowed. We also cannot hold that the appellant defendant is taking any unfair advantage. Any advantage which the plaintiff had got upon the defendant not filing their written statement has been completely lost by their complete inaction over these 23 years or so.
Taking all these circumstances and factors into account, I am of the opinion that an opportunity should be given to the appellant defendant to contest the suit. This is particularly so in view of the dictum of the Supreme Court in Collector L.A. Anantnag & Anr. vs. Mst. Katiji & Ors. 6 (AIR 1987 SC 1353) that a matter is best adjudged on merits than on being thrown out on technicalities and secondly, the constant ruling of the Supreme Court that the aim of the court should be to do substantial justice between the parties than to dispose of a matter on technical grounds, unless a party is guilty of gross negligence or error. The impugned judgment and order is set aside. We direct that the defendant may file their written statement by 15th April, 2024. Order for cross discovery of documents by 30th April, 2024, inspection forthwith. Judges' brief of documents to be prepared by 10th May, 2024. Thereafter, the suit may be mentioned before the appropriate court for trial. We request the learned trial judge to try and determine the suit as expeditiously as possible.
This appeal is accordingly allowed. In the facts and circumstances of this case, the defendant shall pay to the plaintiff costs assessed at Rs.25,000/- being reimbursement for their costs for defending these proceedings for extension of time to file the written statement.
Urgent certified photo copy of this judgment and order if applied for be furnished to the appearing parties on priority basis upon compliance of necessary formalities.
I Agree:-
(Biswaroop Chowdhury, J.) (I. P. Mukerji, J.)
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