Ashok Murthy & Others vs Muniyamma & Others

S.G. Pandit, J

Petitioners are before this Court, under Article 227 of the Constitution of India challenging the common order dated 22.01.2020 rejecting two

applications filed under Section 151 of CPC to accept the written statement of defendants No.4 to 7 and under Order XVIII Rule 17 of CPC to recall

P.W.1 in O.S.No.8276/2012 on the file of the III Additional City Civil and Sessions Judge, Bengaluru.

The petitioners are defendants No.4 to 7, respondents No.1 to 4 are plaintiffs and respondent Nos.5 to 40 are co-defendants in the above stated

suit. The suit is one for partition and separate possession of the suit schedule properties. The suit is at the stage of final arguments. At that stage, the

petitioners/defendants No.4 to 7 filed two applications, one under Order XVIII Rule 17 of CPC to recall P.W.1 for cross-examination and another

application under Section 151 of CPC to condone the delay and to take on record the written statement.

The defendants in the affidavit accompanying application filed under Section 151 of CPC seeking condonation of delay and permission to file

written statement stated that the defendants No.5 to 7 being sisters of defendant No.4 were residing in matrimonial home and could not instruct their

counsel well in time to file written statement. Further, it is stated that the plaintiffs had previously filed O.S.No.6451/2008 and they required some time

to get certified copies of the same. In the same lines, the affidavit in support of application under Order XVIII Rule 17 of CPC was filed. The above

applications were opposed by the plaintiffs by filing objections. It was contended that only to drag on the proceedings, the present applications are

filed. No reason whatsoever is stated to condone the delay in filing the written statement. The trial Court under the impugned order rejected both the

applications stating that there is no cogent reason to condone the delay of more than four years. Aggrieved by the said order, the petitioners are before

this Court in this writ petition.

Heard the learned counsel Sri.R.Subramanya along with Sri.Pradeep, Advocate for petitioners and Sri.Vijaykumar, Advocate for respondents No.1

to 4/plaintiffs. Perused the writ petition papers.

Learned counsel for the petitioners would submit that the impugned order is wholly erroneous and the trial Court committed an error in rejecting the

applications filed seeking leave to file written statement and to recall P.W.1 for cross-examination. In a suit for partition, the defendants would also be

plaintiffs and in that circumstances denial of an opportunity to file written statement is wholly erroneous. The petitioners/ defendants stated reasons for

condoning the delay to the effect that they were staying in their matrimonial home and they had to collect papers of the previous suit, which the trial

Court failed to consider it in proper perspective. The learned counsel for the petitioners relies on the decision reported in ILR 2016 KAR 4700 in the

case of Justice Micheal F.Saldana (Retd.) V/S Sri.M.P.Naronha (Melwyn Prakash Noronha) and other sto contend that the provisions of Order

VIII Rule 1 of CPC are directory in nature and not mandatory. Thus prays for allowing the writ petition.

Per contra, learned counsel for the respondents No.1 to 4/plaintiffs justifies the order of the trial Court. The learned counsel would submit that there

is inordinate delay of four years in seeking leave to file written statement. The suit is already at the stage of final arguments and at this stage, it is not

open for the petitioners/defendants to seek permission to file written statement and to recall P.W.1 for cross-examination without there being any

genuine reason. Learned counsel would further submit that even though suit summons was served much earlier on defendants No.4 to 7, they

appeared before the Court only on 05.01.2016 by filing an application under Order IX Rule 7 of CPC which was allowed on payment of cost. Even

though the defendants appeared on 05.01.2016, till 02.01.2020 they did not bother to participate in the proceedings nor to file written statement. No

reasons have been assigned to condone the delay except stating that they had to collect papers of previous suit. Hence, the trial Court rightly rejected

the applications which would not require any interference.

Having heard the learned counsel for the parties and on perusal of the writ petition papers, the only point which falls for consideration is as to

whether the petitioners/defendants No.4 to 7 made out any ground to permit them to file written statement and to recall P.W.1 for cross-examination.

Answer to the above point would be in the negative and no interference is called for with the impugned order passed by the trial Court, for the

reasons stated below.

Order VIII Rule 1 of CPC permits defendants to file written statement within thirty days from the date of service of summons. Proviso to the

above said Rule provides for extension of time by another ninety days for filing written statement at request, for the reasons to be recorded. But, the

said provision is directory and not mandatory. The above provision compels the defendants to file written statement within the time stipulated therein.

The intention of the Rule is to expedite the proceedings. At the same time, the provision would not curtail the power of the Court to extend the time

for filing written statement beyond the period stated in the above provision for valid reasons. The Hon'ble Supreme Court in the case of KAILASH Vs.

NANHKU AND OTHERS reported in (2005) 4 SCC 480 at paragraphs 42, 44 and 45 has held as follows:

“ 42. 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 extendedâ€​

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The extension of time shall be only by way of exception and for reasons to be recorded in writing howsoever brief they may be, by the

court. In no case, shall the defendant be permitted to seek extension of time when the court is satisfied that it is a case of laxity or gross

negligence on the part of the defendant or his counsel. The court may impose costs for dual purpose: (i) to deter the defendant from seeking

any extension of time just for the asking, and (ii) to compensate the plaintiff for the delay and inconvenience caused to him.

However, no straitjacket formula can be laid down except that the observance of time schedule contemplated by Order 8 Rule 1 shall be

the rule and departure therefrom an exception, made for satisfactory reasons only. We hold that Order 8 Rule 1, though couched in

mandatory form, is directory being a provision in the domain of processual law.â€​.

Reading of the above would indicate that the provision of Order VIII Rule 1 of CPC is directory and not mandatory. But the extension of time to

file written statement can be only as an exception and for reasons assigned by the defendant and recorded by the court to its satisfaction. The

defendants cannot be permitted to file written statement at their own sweet will. The Hon'ble Supreme Court in a recent decision in the case of DESH

RAJ v/s BALKISHAN (DEAD) THROUGH PROPOSED LEGAL REPRESENTATIVE MS.R OreHpoIrNteId in (2020) 2 SCC 708 while

considering timeline for filing written statement in a non-commercial dispute, at paragraphs 10, 11, 13, 15 and 19 has held as follows:

“10. At the outset, it must be noted that the Commercial Courts Act, 2015 through Section 16 has amended the CPC in its application to

commercial disputes to provide as follows:

“16.Amendments to the Code of Civil Procedure, 1908 in its application to commercial disputes:- (1) The provisions of the Code of Civil

Procedure, 1908 (5 of 1908) shall, in their application to any suit in respect of a commercial dispute of a specified value, stand amended in

the manner as specified in the Schedule.

(2) The Commercial Division and Commercial Court shall follow the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as

amended by this Act, in the trial of a suit in respect of a commercial dispute of a specified value.

(3) Where any provision of any rule of the jurisdictional High Court or any amendment to the Code of Civil Procedure, 1908, by the State

Government is in conflict with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, the provisions of the

Code of Civil Procedure as amended by this Act shall prevail.â€​.

Hence, it is clear that post coming into force of the aforesaid Act, there are two regimes of civil procedure. Whereas commercial

disputes (as defined under Section 2(c) of the Commercial Courts Act, 2015) are governed by CPC as amended by Section 16 of the said

Act; all other non-commercial disputes fall within the ambit of the unamended (or original) provisions of CPC.

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As regards the timeline for filing of written statement in a non-commercial dispute, the observations of this Court in a catena of

decisions, most recently in Atcom Technologies Ltd. v. Y.A.Chunawala & Co. holds the field. The unamended Order 8 Rule 1 CPC continues

to be directory and does not do away with the inherent discretion of courts to condone certain delays.

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However, it would be gainsaid that although the unamended Order 8 Rule 1 CPC is directory, it cannot be interpreted to bestow a free

hand to on any litigant or lawyer to file written statement at their own sweet will and/or to prolong the lis. The legislative objective behind

prescription of timelines under CPC must be given due weightage so that the disputes are resolved in a time bound manner. Inherent

discretion of courts, like the ability to condone delays under Order 8 Rule 1 is a fairly defined concept and its contours have been shaped

through judicial decisions over the ages. Illustratively, extreme hardship or delays occurring due to factors beyond control of parties

despite proactive diligence, may be just and equitable instances for condonation of delay.

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The routine condonation and cavalier attitudes towards the process of law affects the administration of justice. It affects docket

management of courts and causes avoidable delays, cost escalations and chaos. The effect of this is borne not only by the litigants, but also

commerce in the country and the public-in-general who spend decades mired in technical processes.â€​

The above decision lays down that even though Order VIII Rule 1 of CPC is directory in nature, it would not permit a litigant to file written statement

at his sweet will and time line prescribed under the relevant provision must be given due weightage. Delay in filing the written statement could be

condoned only on reasons of extreme hardship or reasons beyond their control inspite of due diligence.

In the light of the above principles laid down by the Hon'ble Apex Court, the case on hand will have to be examined. Nodoubt, the suit is one for

partition. The petitioners/ defendants No.4 to 7 were served with suit summons in the year 2012 itself. They appeared before the Court only on

05.01.2016 by filing application under Order IX Rule 7 of CPC which was allowed on cost. On appearance and thereafter, till 02.01.2020 the

petitioners/defendants No.4 to 7 failed to file written statement nor to participate in the proceedings. Only on 02.01.2020, the petitioners/defendants

made applications seeking leave to file written statement and to recall P.W.1 for cross-examination. There is delay of more than four years in seeking

leave to file written statement. Admittedly, the application seeking leave to file written statement and application to recall P.W.1 are filed when the

suit is at the stage of final arguments. No valid or cogent reasons have been assigned to condone the delay. The approach of the

petitioners/defendants is very casual and they have stated that the defendants No.4 to 7 were residing in their matrimonial house and they could not

instruct their counsel in time to file written statement. One another reason stated is that the plaintiffs had filed earlier partition suit in

O.S.No.6451/2008 and they had to collect suit papers which took some time. The reasons stated are not at all valid or cogent reasons. One need not

require four years to collect certified copies of the previously instituted suit. If the petitioners are residing at their matrimonial home, that would not

prevent them from instructing their counsel to file written statement. The reasons stated are not bonafide and it appears that the intention of the

petitioners is only to drag on the proceedings. Moreover, even though suit summons was served much earlier, they took years together to put in their

appearance in the suit. The decisions cited by the learned counsel for the petitioners would in no way assist the petitioners. It is true that the provision

of Order VIII Rule 1 of CPC is directory in nature. The decision relied upon by the petitioners at paragraphs 25 observes that any order to condone

the delay in filing the written statement should be after a critical analysis of facts and circumstances of individual cases. The reasons assigned by the

petitioners/defendants No.4 to 7 are neither satisfactory nor beyond their control.

In the present case, on critical analysis of facts and looking from any angle, the petitioners have not made out any ground to interfere with the

impugned order as well as to condone the delay in seeking permission to file written statement nor to recall P.W.1 for cross-examination. Accordingly,

the writ petition stands rejected.