Geeta Raj Gopalan vs Sh. T.S. Raja Gopalan

J.M. Malik, J.—Both the parties fell out over the question whether petitioner should be granted an opportunity to file written statement after the time schedule prescribed by Order VIII Rule 1 CPC. Learned counsel for the petitioner admits that he was served on 8th May, 2006 and the date fixed in the matter before the trial court was 16th January, 2007. He points out that on 16th January, 2007, the Court was on leave and the next date given was 7th March, 2007. However, counsel noted the next date of hearing as 9th March, 2007 instead of 7th March, 2007. Written statement was not filed by the respondent therein even within 90 days period. The defence was struck off vide Order dated 7th March, 2007. Thereafter the petitioner filed an application for setting aside the ex parte proceedings on 14th March, 2007. The trial court passed the following order:

It is further the case of respondent in the application itself that the counsel inspected the file on 14.03.2007 and came to know about the order dated 07.03.2007 whereby defence of the respondent was struck-off for non-filing of written statement. Yet the written statement has not been filed along with the application to show her sincerity in the matter. The record reveals that application was heard on 19.03.2007 and thereafter, on 03.04.2007 and 07.05.2007 when the same was reserved for orders for 22.05.2007. Yet, the written statement was not filed on any of these dates. As noted above, the written statement has not been filed till date. It is now more than 14 months since the respondent was served.

Counsel for the petitioner submits that he be allowed to file written statement now after the elapse of more than one year and four months. Counsel for the petitioner urges that the petitioner, herein, should not suffer for the negligence of his counsel because the written statement was ready as back as on 18th December, 2006 but the same could not be filed in the Court.

I am unable to clap significance to these arguments. Although, the written statement was ready as back as on 18.02.2006, yet, the same is not filed with the court till today. There is no inkling on the record as to how and why the previous counsel of the petitioner was negligent. Such like evidence can be created at any time. It is a settled law that without any reasonable cause, no further adjournment can be granted. There is no explanation as to why the written statement was not filed before the court on 19.03.2003, 17.05.2007 and 22.05.2007 and even thereafter.

In a latest authority reported in Aditya Hotels (P) Ltd. Vs. Bombay Swadeshi Stores Ltd. and Others, , it was held by his Lordship Hon''ble Dr. Justice Arijit Pasayat:-

The parameters for extending the time granted by Order VIII, Rule 1 of the Code have been delineated by this Court in several cases. In Kailash Vs. Nanhku and Others, ) it was noted as follows:

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, moreso, 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 extended.

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 a 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.

Since neither the trial Court nor the High Court have indicated any reason to justify the acceptance of the written statement after the expiry of the time fixed, we set aside the orders of the trial Court and that of the High Court. The matter is remitted to the trial Court to consider the matter afresh in the light of what has been stated in Kailash''s case (supra). The appeal is allowed to the aforesaid extent with no order as to costs.

In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), , the following observations were made. The provision providing for maximum period of 90 days for filing written statement is not mandatory and the court is not altogether powerless to extend the time even in the exceptionally hard cases. 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 and procedure are handmaid of justice and not its mistress. The court, however, made 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 direction of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII Rule 1.

In a recent authority reported in R.N. Jadi and Brothers and Others Vs. Subhashchandra, , the delay of two days in filing the written statement was condoned by the Hon''ble Supreme Court. Again, the Court itself had fixed the date for filing of written statement which was beyond the prescribed period. His Lordship Hon''ble Mr. Justice P.K. Balasubramanyan, who agreed with the judgment but also made few further following observations:-

In such a position, normally no injustice would be caused to the defendant in insisting upon his filing the written statement at least within 90 days of having received the summons in the suit. I think that it would be proper to avoid an interpretation that may tend to thwart the legislative intent in such circumstances.

It is true that procedure is the handmaid of justice. The court must always be anxious to do justice and to prevent victories by way of technical knock-outs. But how far that concept can be stretched in the context of the amendments brought to the Code and in the light of the mischief that was sought to be averted is a question that has to be seriously considered. I am conscious that I was a party to the decision in Kailash Vs. Nanhku and Others, which held that the provision was directory and not mandatory. But there could be situations where even a procedural provision could be construed as mandatory, no doubt retaining a power in the court, in an appropriate case, to exercise a jurisdiction to take out the rigor of that provision or to mitigate genuine hardship. It was in that context that in Kailash vs. Nankhu and Ors. (supra) it was stated that the extension of time beyond 90 days was not automatic and that the court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from the time limit fixed by the Code and the power inhering in the court in terms of Section 148 of the Code. Kailash is no authority for receiving written statements, after the expiry of the period permitted by law, in a routine manner.

A dispensation that makes Order VIII 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 emphasize 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 VIII Rule 1 must be adhered to and that only in rare and exceptional cases, the breach there of 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 vs. Sir Alfred Mcalpine & Sons (1968) 1 All E.R. 543 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?

Delhi High Court rules also do not permit the further extension as was held by this court in D.D.A. and Another Vs. K.R. Builders P. Ltd., . In HTIL Corporation, B.V. and Others Vs. Mr. Ajay Kohli and Others, no reasonable cause was shown for extension of time, hence, the application in this regard was dismissed. It is, therefore, clear and settled law that without any reasonable and plausible cause the petitioner cannot be permitted to file written statement after prescribed time limit. Under these circumstances, I see no infirmity or illegality in the order passed by the learned Trial Court wherein the application under Order IX Rule 7 read with Section 151 CPC was dismissed. It is noteworthy that no application for extension of time for filing of written statement was ever moved. The petition is without merit and the same is dismissed in limine.