Chief Municipal Officer vs Heeralal Singh and Others

Satish K. Agnihotri, J.—By this petition under Article 227 of the constitution of India, the petitioner/defendant No. 2 seeks to challenge the legality and validity of the order dated 15-1-2008 (Annexure-P/1) passed by the District judge, Jashpur Nagar, in civil suit No. 8-A/2007 Heeralal Singh vs. State of Chhattisgarh & Others. The petitioner also seeks a relief that the written statement filed by the petitioner/defendant No. 2 may be taken on record.

The indisputable facts, in nutshell, for adjudication of the case, are that the plaintiff/first respondent herein filed a civil suit on 10-11-2006 for declaration of title and possession. Notice was issued to the defendant No. 2/ petitioner on 16-11-2006. On 20-11-2006 counsel of defendant No. 2 (petitioner herein) appeared before the lower Court and thereafter, sought time for filing the written statement time and again on 20-11-2006, 27-11-2006, 4-12-2006, 7-12-2006, 20-12-2006, 3-1-2007, 16-1-2007, 2-2-2007, 15-3-2007, 28-3-2007, 7-4-2007, &7-5-2007. An interim order was also passed on 25-6-2007, in favour of the plaintiff/first respondent. The petitioner/defendant No. 2 sought for time again on 19-7-2007. On 3-10-2007 time was granted on payment of cost of Rs. 50/- to file written statement before the next date of hearing. The matter was listed on 9-10-2007 and on the said date the defendant No. 2 petitioner filed written statement. Thereafter, an application was filed by the plaintiff/first respondent on 17-10-2007 under Order VI Rule 16 of the CPC 1908 (for short "the CPC") praying that the written statement filed by the defendant No. 2/petitioner may not be taken on record. The District Judge by order dated 15-1-2008 (Annexure-P/1) allowed the application of the plaintiff/first respondent filed under Order VI Rule 16 of the CPC and declined to accept the written statement filed by the defendant No. 2/Petitioner on 9-7-2007. Thus, this petition filed by the petitioner/ defendant No. 2.

The question for consideration in this case is as to when time was granted on payment of cost to file written statement and the same was filed within the time granted by the Court on 9-10-2007, whether the District Judge can on a subsequent application filed by the plaintiff/first respondent under Order VI Rule 16 of the CPC, decline to accept the written statement? It was argued by learned counsel for the defendant that filing of written statement is a mandatory provision and the same cannot be extended beyond the maximum period of 90 days.

I have heard learned counsel appearing for the rival parties, perused the pleadings and the documents appended thereto.

In the matter of Salem Advocate Bar Association, Tamil Nadu vs. Union of India, AIR 2005 SCW 3827 the Hon''ble Supreme Court observed as under:

The use of the word ''shall'' in Order VIII Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word ''shall'' is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure are hand maid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.

In construing this provision, support can also be had from Order VIII Rule 10 which provides that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the court, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to suit as it thinks fit. In the context of the provision, despite use of the word ''shall'', the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the court in its discretion would have power to allow the defendant to file written statement even after expiry of 90 days provided in Order VIII Rule 1 There is no restriction in Order VIII Rule 10 that after expiry of 90 days, further time cannot be granted. The court has vide power to ''make such order in relation to the suit as it thinks fit'' Clearly, Therefore, the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is directory.

In the matter of Kailash Vs. Nanhku and Others, while considering Order VIII Rule 1 of the CPC, the Hon''ble Supreme Court observed as under:

(iv) The purpose of providing the time schedule for filing the written statement under Order 8 Rule 1 CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the court to extend the time. Though the language of the proviso to Rule 1 Order 8 CPC is couched in negative form, it does not specify any penal consequence flowing from the non-compliance. The provision being in the domain of the procedural law, it has to be held directory and not mandatory. The power of the court to extend time for filing the written statement beyond the time schedule provided by Order 8 Rule 1 CPC is not completely taken away.

(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 there from 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 circumstance 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.

Ratio laid down in the matter of Kailash (supra) was referred to with approval in the matter of Smt. Rani Kusum Vs. Smt. Kanchan Devi and Others, .

Thus, the position is clear that the provision is not mandatory extension of time may be allowed after the period of 90 days in exceptional circumstances and when grave injustice would be occasioned if the time was not extended. The extension of time may be compensated by imposition of cost.

Applying the well settled ratio as stated above to the facts of the case, the written statement was filed after imposition of cost of Rs. 50/- on 9-10-2007. Thereafter the application under Order VI Rule 16 of the CPC for striking out pleadings i.e. written statement filed, which was considered by the learned District Judge, after filing of written statement, was wrongly allowed. Once the cost has been imposed while permitting the defendant to file written statement the same cannot be withdrawn on the subsequent application made by the plaintiff without assigning reasons. The procedural law should not obstruct the administration of justice. In the matter of Smt. Rani Kusum (supra), the Hon''ble Supreme Court observed as under:

15 Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.

For the reasons mentioned hereinabove, the order dated 15-1-2008 (Annexure-P/1) passed by the district Judge, Jashpur Nagar is quashed.

In the result, the petition is allowed. The petitioner is directed to pay a cost of Rs. 2000/- for delaying the process unduly by taking time in not filing the written statement. The written statement filed by the petitioner/ defendant No. 2 on 9-10-2007 is directed to be taken on record.