Girwar Singh vs Jhanak Singh and Others

Abhay M. Naik, J.

This First Appeal has been preferred by the Defendant against the judgment and decree dated 23.12.2005 passed by the court of First ADJ Vidisha in Civil Suit No. 46-A/2005.

Short facts relevant for the purpose of this appeal are that the Plaintiff/Respondent No. 1 instituted a suit for specific performance on the basis of alleged agreement of sale dated 25.6.2001 for consideration of Rs. 70,000/- in respect of agricultural land in area 1.027 hectare comprised in survey No. 335/2 situated in village Sanoti, Tahsil and District Vidisha. According to the Plaintiff, a sum of Rs. 32,000/- was paid as part of consideration and agreement of sale was reduced into writing duly executed by Defendant/Appellant in his favour. Sale deed was to be executed upto 25.5.2002 after receiving balance consideration. This having not been done, a suit was instituted on 28.3.2005.

Defendant/Appellant on giving appearance on 26.4.2005 sought time for engaging a lawyer. Case was adjourned to 12.5.2005 for filing written statement. However, the Presiding Judge was transferred in the meantime, consequently, the court was vacant on 12.5.2005 and 25.6.2005. On 11.7.2005, the case was transferred to the court of First ADJ Vidisha. However, Presiding Judge being on leave, the case was adjourned to 14.7.2005 and thereafter to 17.8.2005.

On 17.8.2005, Defendant/Appellant sought time to submit written statement. This was denied since period of 90 days had already elapsed by that time and accordingly, right to submit written statement was closed. Order sheet dated 17.8.2005 of the trial court reveals that on the same day, an application was submitted by the Defendant u/s 151 of Code of CPC with a prayer that the Plaintiff may be directed to provide/supply copies of the documents relied upon by him and an opportunity to submit written statement may be granted. Pursuant thereto, copies of the documents were supplied by the Plaintiff to the Defendant/Appellant on 5.9.2005. Learned trial Judge on 19.9.2005 observed that the Defendant/Appellant did not take any objection about non receipt of documents on the earlier dates of hearing and did not submit written statement within 90 days from the date of appearance. Thus, it was found that the right to submit written statement was rightly closed. Accordingly, application u/s 151 Code of CPC was dismissed on 19.9.2005. The suit proceeded without allowing the Defendant/Appellant to submit the written statement. Learned trial Judge after recording the evidence of the parties, granted decree for specific performance in favour of the Plaintiff vide the impugned judgment and decree. Aggrieved by the same, present appeal has been preferred.

Shri D.R. Rahul, learned Counsel for the Appellant made his submissions, whereas no one appeared for the Respondents despite service.

It is contended by the learned Counsel for the Appellant that the right to submit written statement has been illegally closed, which caused a gross prejudice resulting into manifest injustice.

Considered the submissions and perused the record.

It is true that the learned trial Judge allowed cross examination and further allowed the Defendant/Appellant to adduce evidence. From the evidence on record it is revealed that the defence of the Defendant/Appellant was that his wife Kunwar Bai was suffering from blood cancer and money was needed by him for her treatment. A sum of Rs. 23,000/- was obtained by him from the Plaintiff as loan on interest @ 3% p m on 25.6.2001. For the transaction of loan, he had brought a stamp of Rs. 50/-, which was got signed from him in blank form. Further defence from the evidence on record seems to be that the Defendant/Appellant had repaid Rs. 16,500/- in April 2002 after withdrawing it from the bank account of his younger brother. Further sum of Rs. 15,400/- was allegedly paid in "Baisakh" 2002 after sale of 11 qtl. of "masoor" at the rate of Rs. 1400/- per qtl.

From the aforesaid, it is amply clear that the defence of the Defendant/Appellant was quite important and was not merely in the nature of denial. Moreover, stamp duty for the purpose of sale agreement on 25.6.2001 was prescribed as Rs. 100/-, whereas the alleged sale agreement is on stamp of Rs. 50/- only. Though, learned trial Judge in para 18 observed that on the reverse of Ex.P/1, it is endorsed that the stamp was meant for purchase agreement, on perusal of Ex.P/1, no such endorsement is found. It is observed that as per the endorsement the stamp was meant merely for agreement. No endorsement for the purpose of sale agreement is found on Ex.P/1. Thus, learned trial Judge has wrongly observed in para 18 that as per the endorsement, the stamp was meant for purchase agreement.

On perusal of the order sheets of the trial court, it is found that the Defendant/Appellant gave appearance on 26.4.2005 and sought adjournment for engaging a lawyer. Suit was adjourned to 12.5.2005. On 12.5.2005 and 25.6.2005, the court was vacant on account of the Presiding Judge having been transferred. So there was no occasion for the Defendant/Appellant to make a demand for copies of the documents relied upon by the Plaintiff. Thereafter, the case was transferred to the court of First ADJ Vidisha, however, again on 11.7.2005 and 14.7.2005, the Presiding Judge being on leave, the court was vacant and there was no occasion for the Defendant/Appellant to make a demand of copies of the documents referred to by the Plaintiff in plaint. It was only on 17.8.2005 that the Presiding Judge was present and a prayer was made u/s 151 Code of CPC demanding thereby the copies of the documents. Rule 110-A and 110-B of Madhya Pradesh Civil Court Rules are relevant for the purpose of this appeal, which are reproduced below:

110-A. When the Defendant appears after service of summons and demands copy of documents which have been filed along with plaint, the Court shall pass proper order for supply of such document.

110-B. Whenever at any stage of the proceedings, any document is filed by either party then true copy thereof shall be supplied to other side.

Despite the aforesaid application, right of the Defendant/Appellant to submit the written statement was closed on account of its non filing within a period prescribed under Order 8 Rule 1 Code of Civil Procedure.

Hon''ble Supreme Court of India in the case of Mr. Shaikh Salim Haji Abdul Khayumsab Vs. Mr. Kumar and Others, has observed:

All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fad remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the Code of CPC or any other procedural enactment eight not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.

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.

It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order VIII is circumscribed bf the words - "shall not be later than ninety days" but the consequences flowingh from not-extension of time are not specifically provided though they may be read by necessary implications, Merely, because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form.

In a later decision, Apex Court in the case of R.N. Jadi and Brothers and Others Vs. Subhashchandra, has observed:

Order VIII, Rule 1 after the amendment castes an obligation en the Defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time fatting within 90 days. The provision does not deal with the power of the Court and also does not specifically take away the power of the Court to take the written statement on record though filed beyond the time at provided far. Further, the nature of the provision contained in Order VIII; Rule 1 is procedural. It is not a part of the substantive law. Substituted Order VII, Rule 1 intends to curb the mischief of unscrupulous Defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the Plaintiffs and Petitioners approaching the Court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried.

In the case of Zolba Vs. Keshao and Others, , Hon''ble Supreme Court of India has observed that non - availability of the file with lawyer would constitute a sufficient cause for not filing the written statement within the period of limitation and the same would constitute sufficient cause for condoning the delay in filing the writing statement. It was further observed that the non-availability of record had prevented the Defendant for filing the written statement within the period of limitation which was an exceptional case constituting sufficient cause for condoning the delay in filing the written statement. Accordingly, the matter was remitted back to the trial court to proceed with the hearing of the suit after accepting written statement.

The reasons of the learned trial Judge for closure of the Defendant/Appellant''s right to file written statement and equally to dismiss the application u/s 151 of Code of CPC are found to have been assigned ignoring Rule 110-A and 110-B of the M.P. Civil Court Rules (supra). Since the Defendant/Appellant by way of submitting an application u/s 151 of Code of CPC had made a demand on 17.8.2005 for supply of documents referred to in the plaint including the alleged sale agreement, it was obligatory on the part of the learned trial judge to ensure the supply of such documents to the Defendant/Appellant to enable him k prepare and submit a complete and effective written statement. Grant of opportunity to file written statement is not merely a formality. It is to be granted with a purposeful manner in order to enable the Defendant to take a proper defence after perusing and examining the documents relied upon by the Plaintiff. It is not merely a procedural formality. Mandatory character of Rule 110-A (supra) has been totally overlooked by the learned trial Judge while ordering the closure of right to file written statement and equally while dismissing the application u/s 151 Code of Civil Procedure. Thus, both the orders are not found sustainable in law. It is held that non-availability of the copies of documents with the Defendant which were referred to in the plaint and relied upon by the Plaintiff would constitute a sufficient cause for not filing the written statement within the period of limitation and the same would constitute a sufficient cause for condoning the delay in filing the written statement. Learned trial Judge ought to have allowed the application u/s 151 Code of CPC by granting an opportunity to submit written statement with proper and complete defence. Therefore, the impugned judgment and decree are not sustainable in law for want of grant of opportunity to the Defendant/Appellant to submit his written statement.

In the result, appeal is allowed in part. Impugned judgment and decree are hereby set aside. Orders dated 17.8.2005 as well as 19.9.2005 of the learned trial Judge closing thereby the Defendant/Appellant''s right to file written statement as well as dismissing the application u/s 151 of Code of CPC are hereby set aside Defendant/Appellant shall appear in the trial Court on 6.1.2010. He may file written statement on that date or within further time as allowed by the learned trial Judge. Thereafter, the learned trial Judge shall proceed with the trial of the suit in accordance with law on merits. Notice to Plaintiff as well as another Defendant may be issued by the learned trial Judge for appearance on 6.1.2010. A certificate be issued to the Defendant/Appellant authorizing him to receive back from the Collector the full amount of court fees paid on the memorandum of appeal. Record be sent to the trial court immediately.

No order as to costs.