Madhya Pradesh High Court
Saleem Khan vs Nargis Begam on 19 March, 2015
1 WP No. 5685/2009
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR.
SB : Hon'ble Shri Justice Sujoy Paul
Writ Petition No. 5685/2009
Salim Khan
Vs.
Nargis Begum
----------------------------------------------------------------------------------------
Shri T.C.Narwariya, Advocate for the petitioner.
Shri Vijay Singh Kushwaha, Advocate for the respondent.
----------------------------------------------------------------------------------------
ORDER
(19/03/2015) This petition filed under Article 227 of the Constitution assails the orders dated 17.8.2009 (Annexure P/1) and 9.11.2009 (Annexure P/5),
2. The petitioner/defendant was noticed by the trial court. The summons were served on him on 2.2.2009. Thereafter, ample opportunities were granted to the petitioner to file written statement but he did not file the written statement. Accordingly, by order dated 17.8.2009 the right to file written statement was closed.
3. Shri T.C.Narwariya, learned counsel for the petitioner, contended that the earlier counsel did not inform the petitioner/defendant that after receiving summons the petitioner must file written statement. Later on, another counsel was engaged to file an application on 22.9.2009 under Section 151 of the Code of Civil Procedure. This application was decided by order dated 9.11.2009. Shri Narwariya submits that for the fault of the Advocate, the litigant/petitioner cannot be made to suffer. He submits that the court below has erred in passing the impugned order. On the contrary, the court below should have granted further time to the petitioner to file written statement. In support of his contention, Shri Narwariya relied on 2008 (2) MPLJ 478 (Zolba vs. Keshao and others); 2006 (1) 2 WP No. 5685/2009 MPLJ 11 (Shaikh Salim Haji Abdul Khayumsab vs. Kumar and others); (2005) 4 SCC 480 (Kailash vs. Nanhku and others) and 2003 (3) MPLJ 560 (Mithumal and others vs. Kavita and others).
4. Prayer is opposed by Shri V.S.Kushwaha, learned counsel for the respondent. He supported the order passed by the court below.
5. The point involved in this case is no more res integra. The Apex Court considered the relevant provision, i.e., Order 8 Rule 1, CPC. This provision deals with filing of written statement. This Court considered various Supreme Court judgments on the subject in Bismilla Bee vs. Arjuman Aara, reported in 2014 (3) MPLJ
593. The relevant paras of this judgment reads as under:-
"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 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) 3 WP No. 5685/2009
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 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?4 WP No. 5685/2009
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 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."
6. A plain reading of the said judgment makes it clear that grant of extension of time beyond thirty days is not automatic. The extension of time beyond ninety days can be given only on showing adequate and special reasons. It is further held that in no case defendant is permitted to seek extension of time when there exists laxity or gross negligence on the part of defendant or his counsel.
7. If the facts of present case are examined on the anvil of aforesaid principle, it will be clear that it is a chronic case of laxity and gross negligence on the part of the defendant. No special or adequate reasons are shown for the purpose of seeking extension of time for filing written statement. Surprisingly, even in application under section 151 CPC 5 WP No. 5685/2009 (Annexure P/3), no reasons are assigned for not filing the written statement at the earlier point of time. I have also considered the judgments cited by Shri Narwariya. No doubt that Order 8 Rule 1 CPC was held to be directory. Yet, in various judgments considered in Bismilla Bee (supra), it was held that in the event written statement was not filed within the stipulated time, the defendant must show special and adequate reasons. Time cannot be extended on mere asking. In the present case, no justifiable reason is shown. Thus, the judgments cited by Shri Narwariya are of no assistance to him.
8. Thus, I find no illegality which warrants interference by this Court under Article 227 of the Constitution. Petition is bereft of merit and is hereby dismissed. Ad interim order dated 10.12.2009 is vacated. No cost.
(Sujoy Paul) Judge Yog/