Yash Pal vs Pinki Sharma And Ors

The petitioner, through the medium of instant petition, filed under Section 104 of the Constitution of Jammu and Kashmir seeks quashment of the order dated 19.07.2018, passed by learned Sub-Registrar (Munsiff), Jammu by virtue of which the court below has accepted the written statement of the defendants/respondents herein after the expiry of statutory period of 90 days.

During the course of arguments, learned counsel for the petitioner stated that the court below has not properly gone through the law, because after the expiry of 90 days defendants/respondents herein cannot file written statement. It is stated that defendants/respondents herein have intentionally and deliberately failed to file their written statement within the statutory period as prescribed under law.

The concluding part of the impugned order dated 19.07.2018 passed by Sub-Registrar (Munsiff) Jammu reads as under:-

"Arguments were advanced by the respective counsels who have reiterated the stand taken by them in their pleadings. In addition, Ld. Counsel for the plaintiff/applicant has relied upon Case law AIR 2004 Kant 246, 2005 AIR (SC) 2441 and 2014(211)TLT223.

I have heard both the sides at length. I have also perused the entire material placed on record.

Perusal of the same reflects that the defendants appeared before the Court on 30-082017 after being served on 24-08-2017 and sought time to file the written statement which was given by the Court. Thereafter, the defendants have been seeking time to file the written statement which was granted to them. On 22-11-2017, i.e., after an elapse of more than two months but within the period of ninety days, the defendants filed the objections to the present application and alongwith the same also presented their written statement. It has been settled by way of various judicial pronouncement that once the statutory period of 30 days for filing the written statement is over, the Court, for reasons to be recorded, can extend the time for filing the written statement upto 90 days from the date of service of summons. However, for extending the time to file the written statement, it is incumbent upon the defendants to convince the Court that they were precluded from filing the written statement within the period of 30 days on a reasonable ground. Herein, the defendants have pleaded that much of their precious time was utilized in procuring certain documents and due to ill guidance by their counsel, they, could not file the written statement within the prescribed statutory period. Simultaneously, it has to be kept in mind that the provision, as postulated in the order VIII is directory in nature and is not mandatory. The Court, under such circumstances, is required to apply its mind to the reason advanced by the party for extending the time to file the written statement beyond 30 days. In the present case, the statutory period of 30 days has expired. However, the written statement has been presented within period of 90 days. Interest of justice demands that the party should not be punished for the wrongs of its counsels and where circumstances so warrant, no party should be proceeded without affording an opportunity of being heard. Having observed so, the interests of the plaintiff are also to be kept in mind since the delay caused by the defendants in filing the written statement has protracted the trial for which the plaintiff needs to be adequately compensated.

Therefore, in the light of the observations herein above made, the written statement presented by the defendants alongwith the objections to the present application, are directed to be taken on record, subject however to payment to cost of Rs 500/- payable to the plaintiff on or before the next date of hearing failing whereby the written statement shall not be considered. At this stage, Ld. Counsel for the defendants have offered to pay the cost, but the Ld. Counsel for the plaintiff refused to receive the same. With these observations, the application moved by the plaintiff under Order VIII Rule 1 & 1O is accordingly dismissed. Be consigned to records."

I have given my thoughtful consideration to whole aspects of matter and law on the point. Rule 1 and Rule 10 of the Order 8 of the CPC reads as under, because they would be relevant for this answer:-

"1. Written statement.- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defense:

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons."

"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."

It is clear from Rule 1 above that ordinarily the defendant is required to file the written statement of his defence within a period of 30 days. However, the Proviso to the said Rule permits the Court, for reasons to be recorded in writing, to allow filing of the written statement within a maximum period of 90 days.

In the case of Salem Advocate Bar Assn. v. Union of India, (2005) 6 SCC 344, the Supreme Court has interpreted the above Rule 1 with the help of the above Rule 10 of Order 8 of the CPC, in the following words:-

"21. 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."

It is quite clear from the aforesaid judgment of the Supreme Court that the maximum time period of 90 days for filing the written statement mentioned in Order 8 Rule 1 is only directory and not mandatory. This implies that in certain exceptional situations, the court has the power to extend the aforesaid maximum period of 90 days for the purposes of filing of the written statement by the defendant. However, as pointed out by the Supreme Court itself, such extension of time beyond 90 days should only be in exceptionally hard cases.

It is pertinent to point out that in a previous case, namely, Kailash v. Nanhku, (2005) 4 SCC 480, the Supreme Court had come to more or less a similar conclusion, though in a different context, that the power of the court to extend time for filing of the written statement in an election petition is not circumscribed by Order 8 Rule 1 of CPC and the proviso thereto.

Recently in the case of Atcom Technologies Ltd. v. Y. A. Chunawala and Co., (2018) 6 SCC 639, the Supreme Court has reiterated the legal principle laid down in the aforesaid case of Salem Advocate Bar Assn. that the maximum time period of 90 days for the purposes of filing of the written statement can be extended in exceptional cases. It was held that in such a situation, onus upon the defendant is of a higher degree to plead and satisfactorily demonstrate a valid reason for not filing the written statement within thirty days.

In view of the aforesaid judgments of the Supreme Court, it should be clear that in appropriate cases further time may be granted by the court beyond the maximum permissible time period of 90 days for the purposes of filing of the written statement by the defendant in a civil suit.

From the perusal of the above said impugned order, it reveals that there is no infirmity of law, because the court below has given sufficient reasons for taking the written statement on record after imposing costs on defendant. The court below has exercised the discretion judicially.

In view of the above the present petition is not maintainable and the same is dismissed.

During the course of arguments, learned counsel for the petitioner has also stated that the court below has not executed the order dated 22.08.2017, by virtue of which defendants/respondents herein were restrained from throwing, passing or flowing the drainage, sewerage and other toilet wastes towards the house of the petitioner. This contention can be taken note of, thereby directing the petitioner to file appropriate application before the court below and, if any, such application is filed, same shall be considered and decided by the court below expeditiously, in accordance with law.