State of Jharkhand vs Ramesh Dutt Pathak

The petitioners, who are defendants in Money Suit No. 92 of 2009, are aggrieved of order dated 15.12.2010 by which the application seeking recall

of orders dated 05.06.2010 and 02.07.2010 has been dismissed. Order dated 05.06.2010 is the order by which the defendants were debarred from

filing written statement and by order dated 02.07.2010 the suit was set for ex-parte hearing against them.

Plea urged on behalf of the petitioners is that if they are not permitted to contest the suit on merits, irreparable loss would cause to the State.

Contending that the period prescribed under Order VIII Rule 1 CPC is directory and not mandatory and while so, the trial court should have

permitted the defendants to contest the suit on merits by extending the period for filing written statement, Mr. Manoj Kumar, the learned State counsel

submits that only after three adjournments the defendants were debarred from filing written statement which has caused serious prejudice to the

petitioner-State. 4. Briefly stated, Money Suit No. 92 of 2009 was instituted against the State of Jharkhand and its officers for a decree for Rs.

2,97,101/- with cost and interest, pendente lite and future, against the defendants. The plaintiff has pleaded that he came to this Court in W.P.(C) No.

1981 of 2005 for a direction upon the respondents for payment of Rs. 6,73,533/- with statutory and penal interest and vide order dated 03.05.2005 this

Court directed the respondents to release admitted amount, however, when the writ Court's direction was not complied, constrained, the plaintiff filed

Contempt Case (Civil) No. 334 of 2006 which stood disposed of with liberty to the petitioners, one of whom was the plaintiff, to approach the

appropriate forum. In view of the aforesaid liberty granted to him, the plaintiff has instituted Money Suit No. 92 of 2009. The dispute on payment for

additional work executed by the plaintiff-contractor arose in respect of different contract works.

Summons was issued to the defendants on 16.02.2010 and the suit was posted for 06.04.2010. Order dated 06.04.2010 would disclose that the

defendants had received summons and they appeared in the suit on 26.04.2010, however, no application seeking extension of time for filing written

statement was filed by them. On the next date of hearing, that is, 10.05.2010 also they did not sought permission to file written statement. Order dated

20.05.2010 records attendance of both the parties, however, by that time written statement was not submitted by the defendants. On the next date of

hearing the defendants were absent. They again appeared on 05.06.2010, but by that time also they had failed to file their written statement. No

application seeking extension of time to file written statement was filed by the defendants, till they were debarred from filing written statement by an

order dated 05.06.2010. About 2 ½ months thereafter the defendants filed an application on 16.08.2010 seeking recall of order dated 05.06.2010.

Order VIII Rule 1 CPC provides that within 30 days of service of summons the defendant shall present a written statement of his defence. Proviso

to Order VIII Rule 1 CPC which was incorporated by the Code of Civil Procedure Amendment Act, 2002 provides that the Court may for the

reasons to be recorded in writing extend the period of 30 days for filing written statement but not later than 90 days from the date of service of

summons. The issue whether the period provided under Order VIII rule 1 CPC for filing written statement is mandatory or directory has by now

settled by judgments of the Supreme Court, one being in “Kailash vs. Nanhku†reported in (2005) 4 SCC 480. The learned counsel for the

petitioners has heavily relied on this judgment to contend that the petitioners should have been granted an opportunity to contest the suit on merits by

filing written statement.

No doubt, normally parties should be afforded opportunity to contest the suit on merits by leading evidence, oral as well as documentary, however,

legislative intendment under Order VIII Rule 1 CPC cannot be forgotten altogether. In “Kailash†the Supreme Court has held that proviso under

Order VIII Rule 1 CPC is directory and not mandatory but at the same time the Court has observed that ordinarily time schedule prescribed by Order

VIII Rule 1 CPC has to be honoured. In paragraph no. 43 of the reported judgment the Supreme Court has observed that a prayer seeking time

beyond 90 days for filing written statement ought to be made in writing which shall be accompanied by documentary evidence depending on the facts

and circumstances of the case. It has been held that in no case, the defendants shall be permitted to seek extension of time when the court is

satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel. Finally, it has been indicated that observance of time

schedule contemplated by Order VIII Rule 1 CPC shall be the rule and departure therefrom shall be an exception for satisfactory reasons [para-45].

The defendants did not file an application seeking extension of time, they did not appear in the suit within time and no reason, except that, official

formalities are inevitable, has been disclosed by the defendants for not filing written statement in time or their absence in the proceeding of Money

Suit No. 92 of 2009 after they had appeared on 26.04.2010. A negligent litigant like the petitioner-State cannot seek extension of time for filing written

statement urging that if it is not permitted to file written statement it would suffer irreparable loss.

The facts pleaded by the plaintiff would disclose that the dispute between the parties has spanned over more than one decade. The proceeding in

Money Suit No. 92 of 2009 would disclose that before the defendants were debarred from filing written statement the suit was adjourned on as many

as 5 occasions after they had appeared in the suit and now if the defendants are permitted to file written statement which was not filed on account of

negligence of the defendants, it would be miscarriage of justice. It is not such a case in which plaintiff can be compensated by imposing cost on the

defendants.

In the aforesaid facts and for the reasons indicated hereinabove, I am not inclined to interfere with the impugned orders dated 05.06.2010 and

15.12.2010 and accordingly, the writ petition is dismissed.