Jamuna Devi (Smt.) and Others vs Suresh Kumar Agrawal

Satish K. Agnihotri, J.—With the consent of learned Counsel appearing for the parties, the matter is heard finally.

By this petition, the petitioners/plaintiffs challenge the legality and validity of the order dated 15-12-2005 (Annexure P-8) passed by the Civil Judge Class-I, Raigarh, in Civil Suit No. 88-A/2002 whereby the applications filed by the petitioners under Order VIII Rule 1 and Order VIII Rule 6C of the Code of Civil Procedure, 1908 (for short "the CPC") have been rejected.

The brief facts, in nutshell, for adjudication of the case, are that the petitioners filed a civil suit for declaration and permanent injunction against the respondent stating inter alia that the petitioners are the sole owners of the suit land and have purchased the same for a valuable consideration. However, the respondent is claiming title over the property of the petitioners by manipulating the revenue records and is also trying to alienate the suit property. The Court below issued summons to the respondent/defendant and the defendant had caused his appearance before the Trial Court on 24-4-2002. However, after so many dates, written statement was filed by the respondent/defendant on 9-3-2005 along with the counter claim. According to the petitioners no application permitting the defendant to file the written statement at a belated stage was filed and the Court below was not justified in accepting the written statement.

Against the said action of the Court below the petitioners preferred a petition being W.P. No. 4786/2005 before this Court, which was disposed of by this Court vide order dated 5-10-2005 observing that "the plaintiffs have not filed any such objection before the Trial Court and have directly approached this Court after the written statement was accepted. In the facts and circumstances of the case, when the plaintiffs are raising this point for the first time before this Court, I deem it proper that the objection should be dealt with by the Trial Court firstly. The plaintiffs, if so advised, may raise their objection before the Trial Court and if such an objection is raised, the Trial Court shall dispose of the same at the earliest possible date and shall pass a speaking order in accordance with law".

Thereafter, the petitioners filed an application under Order VIII Rule 1 of the CPC on 7-11-2005 (Annexure P-4) before the Trial Court praying that the written statement filed by the respondent/defendant may not be accepted, as the same has not been filed well within the stipulated period. The respondent filed his reply to the said application without giving any sufficient and cogent reason for not filing the written statement within the stipulated period. As far as the counter-claim of the respondent is concerned, the petitioners by filing reply on 25-7- 2005 (Annexure P-7) stated that the counter claim is relating to a separate issue and prays that the same may be dismissed as per the provisions of Order VIII Rule 6C of the CPC. Learned Court below by order dated 15-12-2005 dismissed both the applications filed by the petitioners. Thus, this petition.

Learned Counsel appearing on behalf of the petitioners would submit that while dismissing the applications of the petitioners the Trial Court wrongly and contrary to the records held that prior to 9-3-2005 the respondent was not given time to file written statement and the Court below has not at all appreciated the provisions of Order VIII Rule 1 and Order VIII Rule 6C of the CPC in its true perspective. Learned Counsel would further submit that as per the provisions of Order VIII Rule 1 of the CPC the defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence whereas in the present case the written statement has been filed after lapse of 90 days that too without filing any application for extension of time. Learned Counsel would submit that the Court below grossly erred in law while dismissing the application under Order VIII Rule 6C of the CPC.

Per contra, learned Counsel appearing on behalf of the respondent supported the impugned order passed by the Court below. Learned Counsel for the respondent would submit that on 9-3-2005 the plaintiffs have not raised any objection with regard to delay in filing the written statement by the respondent/defendant and accordingly, the same has been accepted.

Earlier the present writ petition was dismissed summarily on 23-6-2006 by this Court on the ground that there was no jurisdictional flaw or material irregularity or failure of justice. Against the said order, the petitioners preferred SLP being SLP (C) No. 16723/2006, before the Hon''ble Supreme Court. The Supreme Court by order dated 3-8-2007 passed in Civil Appeal No. 3442/2007 set aside the order dated 23-6-2006 passed by this Court and the matter was remitted to this Court for consideration of the same afresh in accordance with law.

I have heard learned Counsel appearing for the parties, perused the pleadings and the documents appended thereto. The question involved in this case is as to whether limitation prescribed under the provisions of Order VIII Rule 1 of the CPC is mandatory and in no case written statement after 90 days can be accepted by the Trial Court.

The Supreme Court (three Hon''ble Judges) in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), , while dealing with the newly amended provisions of Order VIII Rule 1 of the CPC held that the provision is directory, however, the order extending time to file written statement cannot be made in routine. Para 21 reads as under:

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 the 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 the 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 Order 8, the Court in its discretion would have the power to allow the defendant to file written statement even after expiry of the 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 the 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.

With regard to filing of the counter-claim the Supreme Court in Ramesh Chand Ardawatiya Vs. Anil Panjwani, , observed as under:

Under Rule 8 any ground of defence which has arisen after the institution of the suit or the presentation of a written statement claiming a set off or counter-claim may be raised by the defendant or plaintiff, as the case may be, in his written statement. Under Rule 9 no pleading subsequent to the written statement of a defendant other than by way of defence to a set-off or counter-claim shall be presented except by leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.

A perusal of the abovesaid provisions shows that it is the Amendment Act of 1976, which has conferred a statutory right on a defendant to file a counter-claim. The relevant words of Rule 6-A are:

A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6,...before the defendant has delivered his defence or before the time limited for delivering his defence has expired...

These words go to show that a pleading by way of counter-claim runs with the right of filing a written statement and that such right to set up a counter-claim is in addition to the right of pleading a set off conferred by Rule 6. A set off has to be pleaded in the written statement. The counter-claim must necessarily find its place in the written statement. Once the right of the defendant to file written statement has been lost or the time limited for delivery of the defence has expired then neither can the written statement be filed as of light nor a counter claim can be allowed to be raised, for the counter-claim under Rule 6-A must find its place in the written statement. The Court has a discretion to permit a written statement being filed belatedly and, therefore, has a discretion also to permit a written statement containing a plea in the nature of set off or counter-claim being filed belatedly but needless to say such discretion shall be exercised in a reasonable manner keeping in view all the facts and circumstances of the case including the conduct of the defendant, and the fact whether a belated leave of the Court would cause prejudice to the plaintiff or take away a vested right which has accrued to the plaintiff by lapse of lime.

The Supreme Court (three Hon''ble Judges) in Kailash Vs. Nanhku and Others, , observed as under:

We find some merit in the submissions made by the learned Counsel for both the parties. In our opinion, the solution- and the correct position of law-lie somewhere midway and that is what we propose to do placing a reasonable construction on the language of Order 8 Rule 1.

Considering the object and purpose behind enacting Rule 1 of Order 8 in the present form and the context in which the provision is placed, we are of the opinion that the provision has to be construed as directory and not mandatory. In exceptional situations, the Court may extend the time for filing the written statement though the period of 30 days and 90 days, referred to in the provision, has expired. However, we may not be misunderstood as nullifying the entire force and impact-the entire life and vigour - of the provision. The delaying tactics adopted by the defendants in Law Courts are now proverbial as they do stand to gain by delay. This is more so in election disputes because by delaying the trial of election petition, the successful candidate may succeed in enjoying the substantial part, if not in its entirety, the term for which he was elected even though he may lose the battle at the end. Therefore, the Judge trying the case must handle the prayer for adjournment with firmness. The defendant seeking extension of time beyond the limits laid down by the provision may not ordinarily be shown indulgence.

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 extended.

Subsequently, the Supreme Court in R.N. Jadi and Brothers and Others Vs. Subhashchandra, (two Hon''ble Judges- Hon''ble Dr. Arijit Pasayat & Hon''ble D.K. Jain, JJ.) approved the observations made by the High Court as under:

6 - 14. 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.

6 - 15. It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order 8 is circumscribed by the words ''shall not be later than ninety days'' but the consequences flowing from non-extension of time are not specifically provided for though they may be read by necessary implication. 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.

Hon''ble Shri P.K. Balasubramanyan, J. concurring with Hon''ble two Judges observed as under:

It is notorious that suits were being dragged on by the defendants in suits by not filing their written statements within a reasonable time. We are not unaware of cases where written statements were not filed even within two or three years of the filing of the suits. The control expected to be exercised by Courts, by the scheme of the Code, was not being exercised leading to slackness in the matter of filing of pleadings in defence. It was in that context that the relevant provisions of the CPC were amended, the laudable object being to avoid delay in the disposal of suits. The amended Order 8 Rule 1 fixes a time-limit for the filing of written statements. But, Parliament did not stop with amending Order 8 Rule 1 alone, i.e., introducing a time-limit for filing written statements and restricting the power of the Court to grant extension of time for filing written statements as 90 days from the date of service of summons. The power for extension of time granted to the Court u/s 148 of the Code was curtailed by introducing an outer time-limit of 30 days from the date originally fixed or granted. Thus, the Legislative intent to limit or curtail the power of the Court to extend the time for filing a written statement is obvious from a conjoint reading of these provisions.

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 knockouts. 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 v. Nanhku, 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 rigour of that provision or to mitigate genuine hardship. It was in that context that in Kailash v. Nanhku, 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.

In Bollepanda P. Poonacha and Another Vs. K.M. Madapa, , the Hon''ble Supreme Court observed as under:

The Court in such matters has a wide discretion. It must, however, subserve the ultimate cause of justice. It may be true that further litigation should be endeavoured to be avoided. It may also be true that joinder of several causes of action in a suit is permissible.

The Court, must, however, exercise the discretionary jurisdiction in a judicious manner. While considering the subservance of justice is the ultimate goal, the statutory limitation shall not be overstepped. Grant of relief will depend upon the factual background involved in each case. The Court, while undoubtedly would take into consideration the questions of serious injustice or irreparable loss, but nevertheless should bear in mind that a provision for amendment of pleadings are not available as a matter of right under all circumstances. One cause of action, cannot be allowed to be substituted by another. Ordinarily, effect of an admission made in earlier pleadings shall not be permitted to be taken away. See State of A.P. and Others Vs. Pioneer Builders, A.P., and Steel Authority of India Ltd. Vs. Union of India (UOI) and Others, and Himmat Singh and Others Vs. I.C.I. India Ltd. and Others, .

A common thread running in the above cited cases is that though the provision of Order VIII Rule 1 of the CPC is procedural and directory, however, filing of written statement after a period of 90 days may be permitted for cogent reasons in order to facilitate the administration of justice and not in routine.

In the instant case the suit was filed on 19-4-2002. The respondent/defendant appeared in the Court on 24-4-2002. Thereafter, despite several opportunities granted on 26-10-2004, 27-11-2004, 23-2-2005, the respondent could file the written statement on 9-3-2005. On 25-11-2002 the petitioners filed an application under Order I Rule 10 of the CPC for non-joinder of State of Chhattisgarh as a party respondent. Thereafter, on 31-8-2003 the original plaintiff died for which an application (I.A. No. 5) under Order XXII Rule 3 of the CPC for bringing the legal heirs of the original plaintiff on record was filed and I.A. No. 5 was allowed on 30-10-2003. Thereafter, a review, i.e., I.A. No. 7 was filed by the petitioners, which was rejected on 15-5-2004. Thereagainst the petitioners preferred an appeal being M.C.A. No. 12/04 on 14-6-2004. Application filed under Order XXXIX Rules 1 and 2 of the CPC was decided on 26-10-2004. Thereagainst, M.C.A. No. 19/04 was preferred before the Appellate Court. The same was disposed of on 17-2-2005. On receipt of the records from the Appellate Court written statement was filed by the defendant on 9-3-2005. The petitioners/plaintiffs filed an application on 7-11-2005 under Order VIII Rule 1 of the CPC for rejecting the written statement on the ground that the same was filed beyond a period of 90 days, which was dismissed by the Court below on the ground that sufficient reasons have been shown to entertain the written statement even after a period of 90 days. It appears that the suit cannot be proceeded further on account of pendency of MCA against the various orders. Even otherwise some applications like application under Order I Rule 10 of the CPC has to be considered at the earliest, the same was not done. Thereafter, the respondent/defendant immediately filed written statement. The Civil Court has rightly accepted the written statement filed by the respondent/defendant. Thus, there is no illegality or infirmity in the impugned order.

Having regard to the facts stated hereinabove, the circumstances were exceptional and, as such, extension of time was necessary in the interest of justice. Grave injustice would be occasioned if the written statement filed subsequently beyond the period of 90 days is not accepted. In respect of counter claim that can be filed at any time after filing of the written statement. However, the delay has been occasioned on account of not only in filing the written statement, but filing of MCAs in Superior Courts against the orders passed under Order I Rule 10 of the CPC and under Order XXXIX Rules 1 and 2 of the CPC [See-.Ramesh Chand Ardawatiya (supra)].

For the reasons mentioned hereinabove, the petition is liable to be dismissed and it is hereby dismissed. However, the petitioners have to be compensated by a sum of Rs. 10,000/- payable by the respondent/defendant within a period of 15 days from the date of this order.