HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
CIVIL REVISION PETITION No.2463 of 2019
ORDER:
1. Petitioners/defendants have filed this Civil Revision Petition Under Article 227 of the Constitution assailing the orders in I.A.No.239 of 2019 in O.S.No.1961 of 2018 pending on the file of VIII Junior Civil Judge, City Civil Court, Hyderabad.
2. The petitioners/defendants have filed an application in I.A.No.239 of 2019 in the said suit under Order IX Rule 7 of the Code of Civil Procedure, requesting the Court to set aside the ex parte order dated 30th January 2019 stating that the original suit is filed for recovery of Rs.2,80,000/- and that the defendants gave vakalat to their counsel on 22.10.2018 and the matter was coming up for filing written statement and counter. By that time, as on 30th January 2019, the Statutory period for filing the written statement was completed. Consequently, the petitioners/ defendants were set ex parte. In para 3 of the affidavit, the 2nd petitioner/defendant No.2 has averred that his father was struggling with lung disease from October 2018 and unfortunately expired in December 2018. Accordingly, he was involved in final rites and rituals and his wife, being a lady, 2 AVR, J C.R.P.No.2463 of 2019 could not contact the counsel. Thus, they could not file the written statement within the stipulated time.
3. This application was resisted by the respondent/plaintiff alleging that the ailments and the demise of the father of the 2nd petitioner/defendant No.2 in the absence of any certificate of death or prescription etc., cannot be accepted and that from October to December 2018, no such hospital record is filed, but, the discharge summary shows that he was discharged on 15.12.2018 itself. Thus, contended that the discrepancies in the medical record shows that the defendants were not prudent in prosecuting the litigation.
4. The trial Court, on appreciating the contentions on both sides, dismissed I.A.No.239 of 2019 with an observation that the said application was filed to set aside the ex parte order dated 30th January 2019 stating that the defendants could not furnish the para-wise remarks to their counsel as they were held up in the hospital, but the dates in the medical report does not match the averments in the affidavit and the petitioners have not explained proper reasons to prove their case. Accordingly, the petition filed under Order IX Rule 7 of the Code of Civil Procedure was dismissed. Aggrieved by the said findings, this Civil Revision Petition is filed.
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5. It is a fact that the petitioners/defendants have failed to file the written statement by 30th January 2019, consequently, they were set ex parte. Petitioner No.2/defendant No.2 has filed his affidavit stating that his father was hospitalized with certain ailments and later passed away, therefore, he could not consult the counsel and his wife, being a woman, also could not take steps to file the written statement. It may be a fact that there are discrepancies in the dates that are mentioned in the discharge summary and the affidavit filed by the 2nd defendant, but that by itself, does not disentitle the defendants to file their written statement. Order IX Rule 7 of the Code of Civil Procedure prescribes that where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed to his appearance.
6. The Hon'ble Supreme Court in R.N.Jadi & Brothers v. Subhashchandra1, while considering the similar situation, wherein, written statement was not filed within the period of 90 days, has held that the said provision does not specifically take away the power of the Court to take the written statement on 1 2007 (4) JLJR 98 (SC) 4 AVR, J C.R.P.No.2463 of 2019 record though filed beyond the time as provided for and further held that the nature of the provision contained in Order VIII Rule 1 is procedural one and it is not mandatory rather the same has been substituted with intention to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases.
7. Further, the Hon'ble Supreme Court in a recent judgment in Shoraj Singh v. Charan Singh2, while referring to the judgments in Kailash v. Nanhku & others3 and in Salem Advocate Bar Association, Tamil Nadu v. Union of India4, held that the period of 90 days for filing the written statement is directory as far as regular suits are concerned and it is mandatory for commercial disputes.
8. Having regard to the object of the provisions of Order IX Rule 7 of the Code of Civil Procedure and the law laid down by the Hon'ble Supreme Court in the above decisions, in my considered opinion, the view taken by the trial Court is erroneous and needs to be set aside. Further, the plaintiff has filed the suit for recovery of Rs.2,80,000/- and the defendants, in the written statement, have mentioned that cheque bounce cases are also pending between the parties.
2Civil Appeal No.6304 of 2021 3 (2005) 4 SCC 480 4 (2005) 6 SCC 344 5 AVR, J C.R.P.No.2463 of 2019
9. Having regard to the nature of the dispute, principles laid by the Hon'ble Supreme Court in the above decisions, this Civil Revision Petition is allowed, the impugned order passed by the trial Court in I.A.No.239 of 2019 in O.S.No.1961 of 2018 is set aside, allowing the defendants to file the written statement. However, the defendants shall cooperate with the trial Court in disposal of the matter without seeking any adjournments. Considering the fact that it is a money suit filed in the year 2018, the trial Court shall make every endeavor to dispose of the suit earliest possible not later than Six months from the date of receipt of the copy of this order. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
_______________________________ A. VENKATESHWARA REDDY, J Date: 17th November, 2021 ajr