Punjab-Haryana High Court
Mehar Chand vs Suraj Bhan And Ors. on 16 November, 1970
Equivalent citations: AIR 1971 PUNJAB AND HARYANA 435
ORDER
1. This revision petition is directed against the order of the Senior Subordinate Judge, Karnal, as passed on 21st March, 1970, whereby the petitioner who was a defendant in the suit was not allowed to file a written statement.
2. Suraj Bhan and another plaintiffs respondents instituted a suit for possession of certain site against the petitioner and his two brothers, Jai Ram, father of the petitioner, was also a defendant. Substituted service was effected on the petitioner and it appears that he instructed a counsel, but means of a telegram, to appear on his behalf. A memorandum of appearance only was filed by the counsel on 5th October, 1968, since he could not get a written statement duly signed and verified by the petitioner. The other defendants had filed their written statement earlier and counsel for the petitioner made a statement that the written statement of those defendants be treated as his as well. It is not disputed that the interst of all the defendants was identical. On 6th January, 1969, the power of attorney was also filed and thereafter issues framed. The defendants seemed to have later compromised with the plaintiffs with the result that the suit against them was dismissed on 6th May, 1969. On the same day, the plaintiffs made an application that the written statement filed by defendants 1,2 and 4, could not be treated as that of the petitioner and that since no written statement had been filed on his behalf, proceedings be taken ex parte against him. the trial Court, by order of 21st August, 1969, declined the prayer of the plaintiffs so far as taking ex parte proceedings was concerned, but accepted their plea that the written statement of the other defendants could not be adopted by the petitioner and that the latter could not be permitted to file a written statement at that stage. The case was then ordered to be fixed for evidence. After this order was passed, the petitioner made an application on 6th October, 1969, for permission to file a written statement, but it was dismissed by the impugned order made on 21st March, 1970.
3. To my mind, the trial Court acted with gross irregularity in the procedure adopted y it inasmuch as it allowed the case to proceed on without specifically deciding till 21st August, 1969 that the petitioner could not adopt the written statement filed by the other defendants. The Councel for the petitioner had for the first time put in appearance on 5th October, 1968, though without a power of attorney. He made a statement n 11th October, 1968, that the written statement of the other defendants be treated as his also, and it was almost after about ten months that an order was made on 21st August, 1969 deciding that the petitioner could not be allowed to do so. No necessity for a written statement by the petitioner would have arisen if the plaintiffs had not got the suit against the other defendants dismissed. In refusing permission to the petitioner to file a written statement, the trial Court relied upon Order 8, Rule 1, Code of Civil Procedure, which reads as under :-
"The defendants may, and, if so required by the Court, shall, at or before the first hearing or within such time as the court may permit, present a written statement of his defence."
This rule gives right to a defendant to file a written statement at his option at or before the first hearing of the suit and even afterwards within such time as the Court may permit. If the defendant has, for any reason, omitted to avail of his such right at or before the first hearing, the Court has a discretion to permit him to do so and time for its purpose can be extended in the exercise of the discretion of the Court if the circumstances so warrant. It is open to the Court to impose terms on which the benefit of extended time will be availed of by the defendant. It may be pointed out that the rule has to be worked in a manner so as to advance justice and it is not intended to be so operated as to punish the defaulting defendant for his omissions. The approach to be made is not that there is some right of defendant which must be forfeited for his default but whether it is a fit case in which the discretion should be exercised in favour o the defendant by permitting him file a written statement. It will be useful in this regard to quote in extenso the following observations of their Lordships of the Supreme Court in Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425, when a reference was being made to that portion of the Code of Civil Procedure which deals with the trial of suits :-
"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 penalities; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity o 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."
4. In the instant case, the trial Court instead of being guided by a desire to facilitate justice by affording an opportunity to the defendant to file a written statement so that he was not condemned unheard, acted in a manner so as to suggest that the defendant must be punished for his omission to file a written statement despite several adjournments. It failed to appreciate the circumstances of the case. For the first time a specific order was passed only on 21st August, 1969, which made clear to the defendant that he could not adopt the written statement of the other defendants. Earlier, the counsel had made a statement on 5th October, 1968, but the proceedings were allowed to linger on without the Court applying its mind to this aspect of the question whether the requires in this regard was legally well-founded or not. The petitioner was lulled into the belief that the written statement of his father and the brothers was good enough and he was not required to file an independent one. The plaintiffs quite abruptly had the suit dismissed against all the defendants except the petitioner, and simultaneously made an application that the petitioner be proceeded against ex parte. It was then alone that the petitioner could know that he was to defend the suit independently of his father and brothers. It a fit case where the trial Court should have in the interests of justice granted permission to the defendant to file a written statement, but, as already stated, it did not allow him to do so. This irregularity in procedure caused manifest injustice to the petitioner which calls for interference by this Court in the exercise of its revisional jurisdiction.
5. In the result, the revision petition is allowed. There is no order as to cost. The parties are directed to appear before the trial Court on 1st December, 1970.
6. Revision allowed.