Smt. Punam Das vs Smt. Siyamani Sharma

1.Petitioners, defendant nos. 3, 5 and 6 in Title Suit No.20 of 2009, are aggrieved of order dated 16.03.2010 by which their application for recall of

orders dated 02.07.2009 and 08.09.2009 has been rejected.

Title Suit No.20 of 2009 was instituted by Smt. Siyamani Sharma claiming herself president of Sarvamangalam Society, Assistant Secretary and a

member of the said society for a decree for declaration that the order of termination dated 04.11.2007 by a decision of the general body of the society

and communications all dated 06.11.2007 by which their membership in the society has been cancelled are illegal, void, invalid and inoperative. The

plaintiffs have also sought a declaration that the minutes of meeting of the Committee of Management of Sarvamangalam Society held on 26.08.2007

are illegal, invalid and inoperative. When the defendants did not appear in the suit, the defendant nos. 3 and 5 were debarred from filing written

statement by an order dated 02.07.2009 and the defendant no. 6 was debarred from filing written statement by order dated 08.09.2009. By these

orders the suit was set for ex-parte proceeding against defendant nos.3, 5 and 6. Other defendants who were served on 24.02.2009 were also

debarred from filing written statement by order dated 25.05.2009. Pleading that they had no knowledge of pendency of Title Suit No.20 of 2009 and

they were not served summons in the suit, the defendant nos.3, 5 and 6 filed applications dated 12.10.2009 and 20.11.2009 seeking recall of the

aforesaid orders by which the suit was set ex-parte against them. These applications have been dismissed by the impugned order dated 16.03.2010.

To assail the legality of order dated 16.03.2010 the petitioners have brought on record a copy of order dated 13.01.2010 by which the trial judge has

permitted the defendant nos. 1, 2 and 4 to file written statement in Title Suit No.20 of 2009. In the said order the trial judge has recorded that

defendants have valuable interest involved in the suit.

Order VIII Rule 1 CPC provides that within 30 days of service of summons the defendants shall file his written statement of defence. This period

of 30 days has been extended under the proviso to Order VIII Rule 1 CPC to 90 days by 2002 amendment in the Code of Civil Procedure (now this

period has been extended to 120 days by amendment dated 23.10.2015). Provisions under the Code which have been amended such as Order VIII

Rule 1 CPC are intended at expeditious disposal of the suit. The debate, whether the period prescribed under order VIII Rule 1 CPC is mandatory or

directory, which was ignited after the amendment of 2002 in Order VIII Rule 1 CPC has been set at rest by the decision of Supreme Court including

the one in “Kailsah Vs. Nanhku†reported in (2005) 4 SCC 480. Now it is well-settled that the period provided under Order VIII Rule 1 CPC

though binding on the parties, is not binding on the courts and in appropriate cases period for filing written statement can be extended by the courts.

The impugned order dated 16.03.2010 simply records the stand of the petitioners that summons was not served upon them. If the aforesaid plea taken

by the petitioners has not been found false they have offered a plausible explanation for their delayed appearance in the suit; the trial judge in its order

dated 16.03.2010 has not recorded a finding that the petitioners were served summons before they put their appearance in the suit. Another ground

reflected in order dated 16.03.2010 for rejecting the applications filed by the petitioners for recall of the ex-parte orders is that the petitioners have not

filed an application seeking condonation of delay. This observation of the trial judge reflects his paucity of knowledge of law. In an application under

Order VIII Rule 1 CPC, section 5 of the Limitation Act is not applicable. Normally the parties shall be permitted to lead evidence and contest the suit

on merits and what the Supreme Court has said, a technical knockout should be avoided, must be the approach of the court.

In the above facts, finding serious infirmity in the impugned order dated 16.03.2010 it is quashed. The writ petition stands allowed. The petitioners

shall file written statement on or before 15.06.2018 and thereafter the trial in Title Suit No. 20 of 2009 shall proceed expeditiously.

The interim order dated 26.11.2010 stands vacated.

Let a copy of the order be transmitted to the trial court forthwith through 'Fax'.