Dev Kumari vs Tilu Ram

Sandeep Sharma, J

Having regard to the nature of the order proposed to be passed in the instant proceedings, this court sees no necessity to issue notice to the respondent because in the event of notice being issued to him, he would be unnecessarily compelled to engage lawyer to defend him in the case, which can be otherwise disposed of on the basis of material already available on record.

Being aggrieved and dissatisfied with order dated 28.10.2022, passed by the learned Civil Judge (Sr. Div.) Rampur Bushahr, District Shimla, Himachal Pradesh, whereby right to file the written statement came to be closed, petitioner defendant has approached this court in the instant proceedings, filed under Article 227 of the Constitution of India, praying therein to set-aside aforesaid order.

Though having heard learned counsel for the parties and perused material available on record vis-à-vis reasoning assigned in the order impugned in the instant proceedings, there appears to be no illegality or infirmity in the impugned order because bare perusal of the same reveals that despite sufficient opportunity petitioner -defendant failed to file written statement, however, having taken note of the explanation rendered in the application qua the delay in filing the written statement, this court without going into the correctness of the order impugned in the instant proceedings, deems it fit to grant one last opportunity to the petitioner-defendant for filing written statement subject to payment of costs.

It has been repeatedly held by the Hon’ble Apex Court as well as this court that whenever technicalities are pitted against substantial justice, it is the substantial justice, which is to prevail. It has been categorically held by the Hon’ble Apex Court in Salem Advocate Bar Association, T.N. versus Union of India, (2005) 6 Supreme Court Cases 344, that 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. Hon’ble Apex Court has categorically held in the aforesaid judgment that the rules or procedure are handmaid of justice and not its mistress. While interpreting the word “shall” as provided Order 8 Rule 1, Hon’ble Apex Court has held that though 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 relevant paras of the judgment is reproduced herein-below:-:-

“20. The use of the word 'shall' in Order 8 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 handmaid 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 8 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 8 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 8, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order 8 Rule 1. There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to 'make such order in relation to the suit as it thinks fit'. Clearly, therefore, 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.”

Consequently, in view of the above, present petition is allowed and impugned order dated 28.10.2022 is quashed and set-aside with direction to the petitioner-defendant to file written statement within a period of two weeks from today subject to payment of costs of Rs. 20,000/-to the respondent-plaintiff. Learned counsel for the petitioner undertakes to cause presence of petitioner-defendant before the court below on 10.7.2023, on or before which date, petitioner will file the written statement failing which, no more opportunity would be granted and order dated 29.10.2022, would automatically revive. Needless to say, written statement, if any, in terms of instant order shall not be taken on record till the time costs as quantified by this court is not paid. In the aforesaid terms, present petition is disposed of alongwith pending applications, if any.