Farooque vs Additional Distrcit Judge ...
2019 Latest Caselaw 527 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 24
 

 
Case :- MISC. SINGLE No. - 1946 of 2012 [AFR]
 

 
Petitioner :- Farooque
 
Respondent :- Additional Distrcit Judge Balrampur & Ors.
 
Counsel for Petitioner :- Shyam Mohan
 
Counsel for Respondent :- Manish Kumar,Sachin Srivastava
 

 
Hon'ble Irshad Ali,J.

Heard learned counsel for the petitioner, learned Standing Counsel for the respondent nos.1,2 and 8 and learned counsel representing the respondent nos.3 to 7.

By means of the present writ petition, the petitioner is challenging an order dated 23.2.2012 passed by the respondent no.1 and the order dated 6.11.2008 passed by the respondent no.2 as well as order dated 6.5.2010 passed by respondent no.8 (Additional Civil Judge, Junior Division-II, District Daliganj).

Facts of the case are that Suit No.212 of 2018 was filed by respondent nos.3 to 6 for cancellation of registered sale deed dated 22.3.2006. The petitioner-defendant received notice and filed Vakalatnama through counsel on 10.7.2008 and the time was allowed to file written statement in the suit. He was granted last opportunity to file written statement by fixing a date as 6.11.2008, but due to non-filing of the written statement, an order was passed whereby the time to file written statement was closed. On 6.11.2008 there was an illness of counsel for the defendants, therefore 4.12.2008 was the date fixed. The petitioner moved an application along with written statement before the Trial Court on 4.12.2008 which was dismissed in default vide order dated 11.2.2010. The petitioner moved an application for recall of the order dated 11.2.2010 vide application dated 19.2.2010 which was dismissed vide order dated 6.5.2010 on the ground that once an order has been passed rejecting the application for accepting written statement and by passing an order on 6.11.2008, the defendants have been stopped to file written statement, therefore, in case permission is accorded then there shall be res judicata. Against the order passed on 6.5.2010, the petitioner filed Revision No.50/10 which has also been rejected as time barred vide order dated 23.2.2012. Feeling aggrieved, the petitioner has filed this writ petition before this Court assailing the aforesaid orders.

Submission of learned counsel for the petitioner is that the petitioner has been stopped to file the written statement vide order dated 6.11.2008 on the ground that under the amended provisions of C.P.C., the time-limit to file written statement from the date of filing of appearance is 90 days, therefore, in spite of time being granted to the defendants to file written statement, he has failed to file written statement within time, therefore, vide order dated 6.11.2008, the time to file written statement was closed.

On the issue involved, submission of learned counsel for the petitioner is that the provisions of order 8 rule 1 is not mandatory in nature and it is directory, therefore, the order dated 6.11.2008 is illegal and is liable to be set aside.

In support of his submissions, learned counsel for the petitioner has relied upon a judgment rendered by the Hon'ble Supreme Court in the case of Zolba v. Keshao and others reported in (2008)11 Supreme Court Cases 769. He has also relied upon a judgment rendered by the Division Bench of this Court in the case of Khadi Evam Gramodyog Board, Lucknow and others v. M/s Purvanchal Janta Gram Sewa Sansthan and another reported in 2014 (32) LCD 2225.

On the other hand, learned counsel for the respondent nos.3 to 6 submitted that the lower courts in rejecting the case of the petitioner have recorded cogent reason that it is deliberate part of the petitioner in not filing written statement within the time granted by the court below, therefore, he is not entitled to get relief. The impugned orders have been passed legally and, therefore, do not require interference by this Court.

Having heard the rival contentions of the learned counsel for the parties, I perused the material available on record and the law reports cited by the petitioner.

To resolve the controversy, provisions contained under Order 8 Rule 1 C.P.C. are relevant to be recorded which are being quoted hereinbelow:

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

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."

On perusal of the provisions referred hereinabove, it is evident that there is a time-limit of 90 days and it does not record that in any eventuality, time-limit prescribed under the aforesaid provisions cannot be extended. On its perusal, it is also evident on the face of record that the provision is not mandatory in nature, therefore, the application after rejecting the recall application and after closing the time-limit to file written statement before the court, appears to be not justifiable in law.

The revisional court has also committed manifest error of law in spite of the fact that the petitioner brought on record the reason of delay in approaching the revisional court. The revisional court in spite of taking the ground of delay to be reasonable, has recorded otherwise finding that the petitioner who was knowing that the remedy of revision is available, moved an application for recall of the order rejecting the application for acceptance of written statement treated to be filed within time. This finding is technical in nature, therefore, it cannot be termed to be valid.

In the case of Zolba (supra), Hon'ble Supreme Court has recorded the following finding on the point of order 8 rule 11 C.P.C. by holding that it is not a mandatory in nature, in paragraphs 11, 13 and 15:

11. Before we consider whether the provisions under Order 8 Rule 1 CPC are mandatory or directory in nature, we need to consider the provisions under Order 8 Rule 1 CPC which run as under:

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

Provided that whether 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."

13. Considering the facts and circumstances of the present case and the statements made in the application for condoning the delay in filing the written statement, we are not in a position to hold that the appellant was not entitled to file the written statement even after the expiry of the period mentioned in the proviso to Order 8 Rule 1 CPC. After reading the provisions, in particular the proviso to Order 8 Rule 1 CPC, we are unable to hold that the provisions under Order 8 Rule 1 are mandatory in nature.

15. Therefore, following the principles laid down in the decision, as noted hereinabove, it would be open to the court to permit the appellant to file his written statement if exceptional circumstances have been made out. It cannot also be forgotten that in an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Therefore, unless compelled by express and specific language of the statute, the provisions of Order 8 Rule 1 CPC or any procedural enactment should not be construed in a manner, which would leave the court helpless to meet extraordinary situations in the ends of justice."

Likewise, in the case Khadi Evam Gramodyog Board, Lucknow and others (supra), the Division Bench of this Court has recorded the following finding in paragraphs 41, 44, 52 and 53:

"40. Under the old rule as it stood before amendments in 1999 and 2002, the defendant was required to file his written statement at or before the first hearing or within such time as the Court may permit. But Rule 1 in its present form has fixed a time limit within which written statement has to be filed.

44. In another case of Rani Kusum (supra), the Apex Court observed as under:

Order VIII, Rule 1 after the amendment casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Further, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Substituted Order VIII, Rule 1 intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried.

52. Now applying the various judgements of Apex Court, it is clear that the provisions of Order 8 Rule 1 & 10 are directory in nature. IN case in hand both the courts proceeded ex-parte against the defendant but there was an application moved by the appellant alongwith their written statement before trial court for accepting the same. However, the said application was rejected.

53. In our considered view, the Court should have adopted lenient view in this regard and the written statement filed by the appellant, should be taken by the Court."

Considering the facts and circumstances of the present case, the law reports cited above and the statements made in the application for condoning the delay in filing the written-statement, I am not of the view that the petitioner was not entitled to file the written statement even after expiry of the aforesaid period mentioned in the proviso to Order 8 Rule 1 C.P.C. Order 8 Rule 1 C.P.C. is not mandatory in nature, rather it is directory in nature, therefore, both the courts below could have adopted lenient view in this regard and the written statement filed by the petitioner would have been taken by the court on the record and then proceeded to decide the dispute. Accordingly, both the courts below have committed gross illegality in recording the finding that the provisions contained under Order 8 Rule 1 C.P.C. are mandatory and further time can be extended to file written statement.

In view of the above, the impugned orders cannot be sustained and are hereby set aside. The respondents are directed to accept the written statement of the petitioner and to proceed to decide the case on its merits in accordance with law and by affording opportunity of hearing to the concerned parties and following the procedure prescribed under law, to pass appropriate order expeditiously, preferably within a period for one year from the date of production of a certified copy of this order.

In the result, the writ petition is allowed.

Order Date :- 6.3.2019

GK Sinha