Mukul Dhrangadharia & Anr. vs Dr. D.V. Acquilla & Anr

Heard on the question of admission.

Challenge in this writ petition under Article 227 of the Constitution of India is to the order dated 03.04.2018, passed by V Addl. District Judge, Bhopal

in RCS B-191/16, whereby the application of plaintiffs/ petitioners under Order 8 Rule 10 read with Section 151 of the C.P.C. was rejected.

It is the case of the petitioners that he has filed a suit on 14.09.2016 for recovery of Rs.2 Crores from the defendants/respondents. Summons were

issued to the respondents, who appeared through their counsel on 06.12.2016, but filed the written statement after a long delay of seven months

despite being given repeated opportunities. Plaintiffs/petitioners filed an application under Order 8 Rule 10 read with Section 151 of the C.P.C. to

struck out the defence of the respondents, however, the same was rejected considering the fact that the respondents reside in United Kingdom and

have filed the written statement on the permission of the Court and not taking the written statement on record would cause serious prejudice to their

defence. Â

It is argued by Shri S.K. Rao, learned Senior Counsel that provisions of Order 8 Rule 10 of C.P.C. are mandatory and stipulate that defendant shall

within 30 days from service of summons on them, present a written statement on their defence. However, written statement, signed by only one

defendant was filed after seven months. Therefore, the trial Court ought to have struck off their defence and proceeded further in the matter in

accordance with the provisions of Order 8 Rule 10 of C.P.C. It is stated that at the best the court has power to permit a period of 60 days to the

defendants to file the written statement, and beyond 90 days, it is not  permissible to the Court to allow the defendants to file the written

statement.Â

Reliance is placed on (2009) 3 SCC 513 Mohammad Yusuf Vs. Faij Mohammad and others, wherein it is held that the defendants may be permitted to

file written statement after the expiry of 90 days only in exceptional situations.

Order 8 Rule 10 of the C.P.C. reads thus:-

“10. Procedure when party fails to present written statement called for by Court :- 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, as the case may be, the Court shall

pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be

drawn up.â€​

Plain reading of Order 8 Rule 10 of C.P.C. makes it clear that the Court can either pronounce judgment against the defendant in absence of written

statement or pass any order as it thinks fit. It is apparent from the record that the trial Court on earlier occasion has adjourned the case and

permitted the defendants to file the written statement. Once the case was adjourned to a future date and permission to file written statement was

granted, it is impliedly clear that the trial Court has exercised discretion contemplated in later part of Rule 10 of Order 8 of C.P.C. i.e., “or make

such order in relation to the suit as it thinks fitâ€. It cannot be, therefore, said that the trial Court was not competent to accept the written statement or

has acted beyond jurisdiction.

In Rani Kusum (Smt) Vs. Kanchan Devi (Smt) and others (2005) 6 SCC 705 concurring with the ratio laid down in Kailash Vs. Nanhku and others

(2005) 4 SCC 480 the Supreme Court has held:-

“10. 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 fact 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 CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet

extraordinary situations in the ends of justice.

The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer.

The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure

should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in the judges to act ex debito justitiae

where the tragic sequel otherwise would be wholly inequitable. - Justice is the goal of jurisprudence processual, as much as substantive. (See Sushil

Kumar Sen v. State of Bihar(1975 (1) SCC 774).

No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or

for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed

according to the altered mode. (See Blyth v. Blyth (1966) 1 All E.R. 524). A procedural law should not ordinarily be construed as mandatory; the

procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be

followed. (See Shreenath and Anr. v. Rajesh and Ors. (AIR 1998 SC 1827).

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.â€​

In Kailash (supra) the Supreme Court has held:-

“46 (iv) The purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1 of 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 of Order VIII of the CPC is couched in negative form, it does not specify any penal consequences

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 VIII, Rule 1 of the CPC is not completely

taken away.

(v) Though Order VIII, Rule 1 of the CPC is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil

causes which persuaded the 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 therefrom 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 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 was needed to be given for the circumstances 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.

The object behind the time period prescribed under Order 8 Rule 10 of the CPC only to prevent the delay in hearing and disposal of the cases.Â

However, given to the facts and circumstances of the case, and most importantly considering that the respondents are resident of United Kingdom

and would have taken time to instruct their counsel in preparation of written statement and the affidavit, the trial Court considered the same as

exceptional circumstances and to ensure that injustice may not be done has passed the impugned order.

In view of the authoritative pronouncements of the Supreme Court, the trial Court has not committed any illegality in rejecting the application of the

petitioners and allowing the written statement filed by the respondents to be taken on record.Â

The petition being devoid of merits is accordingly dismissed.