Tarkeshwar Yadav vs Santosh Yadav

T.S. Thakur, J.—This appeal arises out of a suit for dissolution of partnership and rendition of accounts which the Court of Additional District Judge, Tis Hazari, Delhi has decreed under Order VII Rule 10 of the Code of Civil Procedure. Summon issued to the defendant were served upon him on 27th April 2004. On, 28th April 2004, the date fixed in the suit, the defendant appeared through his counsel but since the Presiding Officer was on leave, the matter was adjourned to 1st May, 2004. On 1st May, 2004, the defendant appears to have made a request for supply of copies of the documents attached to the plaint upon which the court is said to have orally directed the plaintiff to do the needful and the suit adjourned to 25th May, 2004 for filing of written statement.

The defendant-appellant''s case is that documents necessary for drafting a written statement were not supplied to him despite demands forcing him to apply for certified copies of the same. An application under Order VII Rule 11 of the CPC was also in the meantime filed by the defendant. The said application was eventually dismissed on 2nd September, 2004 and the suit posted for filing of the written statement on 4th October, 2004. On 4th October, 2004, by the time the counsel for the defendant reached the court, the matter had been adjourned to 25th October, 2004 on which date the defendant was proceeded ex parte and the suit posted for recording of ex parte evidence on 10th December, 2004. An application for setting aside the ex parte proceedings was filed by the defendant which was allowed by the Trial Court by order dated 10th October, 2004 upon payment of costs of Rs. 500/- and the suit adjourned to 6th January, 2005 for filing of written statement. It was at this stage that the plaintiff moved an application under Order VIII Rule 10 of the CPC seeking a decree against the defendant on account of his failure to file a written statement within the time stipulated under Order VIII of the CPC. The trial court has, by the judgment and decree impugned in this appeal, allowed the said application and rejected the prayer of the defendant for extension of time and decreed the suit. The present appeal, as seen earlier, assails the correctness of the said judgment and decree.

We have heard at some length learned counsel for the parties and perused the record. The trial court has, while declining to take the written statement of the defendant on record, taken the view that the delay beyond 90 days from the date of service of the summons upon the defendant could not be condoned and that the defendant was bound to suffer a decree by reason of his default. Till recently there was no doubt a cleavage in the judicial opinion in the country on the true and correct interpretation of the provisions of Order VIII Rule 1 of the CPC. The same however stands resolved by two authoritative pronouncements of the Supreme Court in Kailash Vs. Nanhku and Others, and Smt. Rani Kusum Vs. Smt. Kanchan Devi and Others, . In Nanhku''s case (supra), the Supreme Court held the provisions of Order VIII Rule 1 of the CPC to be directory in nature. The court declared that the power to extend time for filing the written statement beyond what is provided for in Order VIII Rule 1 of CPC had not been completely taken away. The court ruled that although the time schedule has to be followed, yet extension of time was not wholly impermissible. The following passage from the said decision is, in this regard, apposite:

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 hold 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 above position was reiterated by their Lordships in Kusum Rani''s case (supra) in which the court reiterated the well settled legal proposition that procedural law was only a handmaid for doing justice. The Court observed:

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 was further held that the negative words used in Order VIII Rule 1 of the CPC did not necessarily make the provision mandatory. The court may, observed their Lordships, hold a provision couched in negative language to be directory in nature having regard to the context in which the provision was enacted.

The trial court was, in the light of the above authoritative pronouncements, in error in holding that Order VIII of the CPC did not envisage. The court can grant extension of time to the defendant for filing a written statement beyond 90 days prescribed therein.

The next question then is whether there were sufficient reasons for the defendant to seek an extension of time in the filing of written statement. It was argued on behalf of the appellant and rightly so that the delay in the filing of the written statement had primarily occurred on account of the defendant having been proceeded ex parte which order was later set aside by the Court on an application moved by the defendant. What is significant is that the Court had while doing so, directed the defendant to file the written statement on the 6th January, 2005. The Court could not, therefore, ignore the written statement which the defendant had filed on 20th December, 2004 itself, i.e., much before the expiry of the time permitted by the Court. Although there was delay in the filing of the written statement, the circumstances that had intervened the presentation of the written statement and the expiry of the stipulated period of 90 days were sufficient to justify an order of extension of time on payment of suitable costs, if not unconditionally. In as much as the Court below ignored those circumstances and felt handicap in extending time on account of what it considered was a mandatory provision of law forbidding such extension, it committed a mistake that needs to be rectified in appeal. In the result, this appeal succeeds and is hereby allowed. The impugned judgment and decree is set aside and the delay in the filing of the written statement by the defendant condoned upon payment of cost of Rs. 5,000/- to counsel for the plaintiff. The suit shall consequently stand remitted back to the trial court for trial and disposal in accordance with law. Parties are directed to appear before the trial court for directions on 25th January, 2007.