Nagoji Srinivasa Rao vs Mokkapati Vijaya Lakshmi
2022 Latest Caselaw 9505 AP

            THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI

               Civil Revision Petition No.360 of 2020

ORDER:

This civil revision petition, under Article 227 of the

Constitution of India, is filed against the order, dated 27.11.2019,

dismissing I.A.No.540 of 2019 in O.S.No.235 of 2013 on the file of

the Court of XIII Additional District Judge, Krishna District, at

Vijayawada, filed under Order IX Rule 7 and Section 151 CPC to set

aside the order passed on 17.02.2017 forfeiting right of the 4 th

defendant to file his written statement and permit him to contest

the suit.

2. Heard Ms. K. Pallavi, learned counsel, representing Sri K. V.

Bhanu Prasad, learned counsel for the revision petitioner/4 th

defendant and Sri Marri Venkata Ramana, learned counsel for the

1st respondent/plaintiff.

3. The 1st respondent filed suit for partition, against respondents

Nos.2 to 4/defendants 1 to 3 and the petitioner/D-4. The

petitioner/D-4 contended that he could not file his written statement

on or before 17.02.2017 as he was busy in going to Hyderabad in

respect of pendency of the appeal in A.S.No.74 of 2008 and cross

appeal filed by Vijaya Lakshmi and could not contact his counsel in

respect of the proceedings in this suit and when he came to BSB, J C.R.P.No.360 of 2020

Vijayawada in August, 2019, he was informed that his right to file

written statement was forfeited by the order of the Court. He

claims that the delay in not filing the written statement earlier is

purely a mistake and because he was attached to the appeal

proceedings before the High Court, besides cross appeal and

revision petition (CRP) filed by the petitioner against the order

dismissing the petition under Order VII Rule 11 CPC.

4. The petition was opposed by filing the counter of the 1 st

respondent/plaintiff and the same was adopted by the respondents

Nos.2 to 4/D-1 to D-3. In the counter, it is contended that the

reasons stated by the petitioner are not true. It is also stated that

originally the petitioner/D-4 filed a suit for partition of some of the

joint family properties vide O.S.No.21 of 2001 on the file of the

Court of II Additional District Judge, Vijayawada, against the

respondents, that the same was dismissed on technical grounds,

that some more properties which are available for partition were not

included in the suit. Therefore, the 1st respondent/plaintiff herein

filed this suit for partition of all joint family properties liable for

partition, having realized that the petitioner/defendant No.4 has no

grounds to contest the suit, has been playing several tricks to delay

the suit proceedings as he has been managing the suit properties

on behalf of all the share holders and enjoying the proceeds without

paying any share to the respondents. It is further contended that BSB, J C.R.P.No.360 of 2020

the petitioner filed I.A.No.649 of 2013 to reject the plaint and

dragged on the matter and finally, the petition was dismissed on

06.01.2017 by the trial Court and thereafter a revision in

CRP.No.1657 of 2017 was filed and the same was also dismissed on

merits in the High Court on 28.06.2019. The 1 st respondent

contends that the petitioner has intentionally failed to file the

written statement and that the petitioner has been working in

Andhra Bank, Vijayawada and attending his duties regularly and

therefore there is no need for him to travel or stay in Hyderabad for

a long time for the purpose of appeal and cross appeal which were

never listed for hearing and moreover the High Court has been

shifted from Hyderabad and established in the State of Andhra

Pradesh w.e.f., 01.01.2019. Therefore, the respondents claim that

there are no bona fides in filing the petition and prayed to dismiss

the petition.

5. After hearing both parties, the trial Court dismissed the

petition disbelieving the reasons stated by the petitioner.

6. Having been aggrieved of the order of dismissal, this revision

petition is filed on the grounds that the affidavit of the petitioner

was drafted in a casual manner by the counsel who appeared before

the trial Court and that the petitioner is not responsible for the

statements in the affidavit and that the trial Court ought to have BSB, J C.R.P.No.360 of 2020

considered that the petitioner is not aware that sufficient cause

which is an essential requirement to set aside the order of forfeiture

has (sic not) been made out. It is further contended that the

petitioner was not informed about the seriousness if no written

statement is filed within time. He further contended that the

petitioner has been closely following his counsel and was not

negligent at any point of time and it is only during the trial it was

realized by the counsel to file an application and therefore the

petitioner should not suffer due to mistake of the counsel.

7. Respondents Nos.2 to 4/defendants 1 to 3 are shown as not

necessary parties.

8. The learned counsel for the petitioner reiterated the

contentions in the affidavit and the grounds raised in the revision

and placed reliance on the decision of the Supreme Court in Rafiz

and another v. Munshilal and another1, wherein it was observed

that the interest of an innocent party should not suffer for

misdemeanor or inaction of his counsel. In the same context, she

further referred to a decision of the Telangana High Court in

Mallaram Sanjeeva Goud, Ranga Reddy District and others v.

P. Bhikshapathi, Ranga District and others2, wherein it was

held that it is settled law that parties engage Advocate and rely on

1981 AIR (Supreme Court) 1400

2019 (5) ALT 10 BSB, J C.R.P.No.360 of 2020

the Advocate to take care of their interests. If they are not properly

advised by the Advocate and when they immediately approach the

Court within the stipulated period of limitation, the Court cannot

dismiss the said application on the ground that petitioners should

prove willful negligence on the part of their earlier counsel on

record.

9. Per contra, learned counsel for the 1st respondent contended

that the revision petitioner now contends that the reasons

mentioned in the affidavit for the delay are not proper and blames

the counsel, and yet, did not state what are the actual reasons/facts

which are sufficient to explain the delay.

10. In response, learned counsel for the revision petitioner

submitted that the petitioner mentioned the reasons in the affidavit

filed in support of I.A.No.1 of 2020 which is filed to grant interim

stay and has drawn the attention of this Court to the facts pleaded

in para (3) of the affidavit which states that since the dispute in the

suit relates to family issue and the sister of the revision petitioner

filed the suit, the matter was placed before the elders for

settlement, and thereby, the written statement could not be filed;

but, the counsel for the revision petitioner before the trial Court did

not inform about the seriousness of non-filing of written statement

and that the petitioner was not at all negligent and he was not BSB, J C.R.P.No.360 of 2020

aware of the time stipulated to file written statement and he

honestly followed the counsel, as he is ignorant of law and drafting

of pleadings and further had he been informed about the

consequences of non-filing of written statement , he would not have

neglected to file the written statement. It is also stated in the

affidavit that only after the trial Court dismissed the petition holding

that the reasons stated are not proper, then, the petitioner realized

the mistake and the negligent drafting of his counsel. In view of

the said facts pleaded, learned counsel for the 1st respondent

submitted that ignorance of law is not an excuse.

11. Learned counsel for the 1st respondent/plaintiff contended

that the decisions relied on by the revision petitioner do not apply to

the present case since the revision petitioner cannot blame the

counsel as he has experience of participating in the civil litigation as

he had filed similar suit for partition and is an educated person

doing employment in a bank for a long time. In this context,

learned counsel for the 1st respondent/plaintiff further submitted

that the data available on e courts' website shows that still the

same advocate is continuing for the revision petitioner and had the

advocate been so un-courteous to his client, the petitioner would

not have continued to engage his services any further, and that

itself exhibits that it is only a lame excuse to seek to condone delay

and sheer negligence on the part of the petitioner. Learned counsel BSB, J C.R.P.No.360 of 2020

for the revision petitioner has not controverted the statement that

the same advocate is continuing for the petitioner before the trial

Court. As such, there is acceptability in the argument put forth by

the learned counsel for the 1st respondent/ plaintiff in this regard.

12. He further submitted that the reason for the delay stated

originally in the affidavit is also not acceptable as the petitioner is

an employee working in Andhra Bank in Vijayawada for long time,

and therefore, there is no need for him to stay in Hyderabad for

three long years between the date of forfeiting the right to file

written statement and the date of filing petition to set aside the

order and moreover when the matters have not reached for hearing

in the appeal, it is obviously a lame excuse shown as reason for not

filing the written statement. He further submitted indeed the

petitioner did not choose to file written statement and has been

being negligent in filing the written statement. He further stated

that the petitioner has not filed written statement, at least along

with this petition, to show his bona fides and to disclose his defence

to enable the Court to consider whether there is any reason to allow

him to contest the suit in the interest of justice.

13. For better appreciation, Order VIII Rule 1 CPC is excerpted

hereunder:

BSB, J C.R.P.No.360 of 2020

Order VIII Rule 1 of CPC.

"1. WRITTEN STATEMENT:-

(1) The defendant shall, at or before the first hearing or within such time as the Court may permit, 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 written statement on such other day, as may be specified by the Court, for reason to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record."

14. Learned counsel for the revision petitioner submitted that

time prescribed under Order VIII Rule 1 CPC is applicable only in

respect of commercial cases but not for any other suit as held by

the Supreme Court in Shoraj Singh v. Charan Singh3, and

therefore, on sufficient reason being shown, the same can be

received. Per contra, learned counsel for the 1st respondent/

plaintiff submitted that as per Order VIII Rule 1 CPC, written

statement shall be filed within thirty (30) days and an exception has

been carved out in the same provision to allow filing of written

statement within further sixty (60) days, however, subject to giving

reasons. He further submitted that though time is stipulated in the

Live Law 2021 SC 573 BSB, J C.R.P.No.360 of 2020

said provision, the Hon'ble Supreme Court in the case of Salem

Advocate Bar Association, Tamil Nadu Vs. Union of India

(UOI)4 held that in exceptional hard circumstances which prevent a

party from filing written statement, it can be received even beyond

90 days period, but not in the present case where the petitioner has

not shown any such exceptional hard circumstances or situations

which prevented him from filing written statement, and therefore, it

cannot be received.

15. The legal proposition is not in dispute. As rightly submitted

by the learned counsel for the 1st respondent/plaintiff, written

statement can be received even beyond the period stipulated,

however, on establishing exceptionally hard circumstances and in

the present case, no such reasons are shown as already discussed.

Furthermore, it is not the prayer of the petitioner to receive the

written statement nor is it enclosed to the petition since the

affidavit does not refer to it nor does the petition contain a list of

enclosures. The trial Court has erroneously mentioned in the order

in its beginning paragraph referring to the prayer in the petition as

if the petitioner sought permission to file written statement. It is an

obvious error crept in the order. The learned counsel for the

revision petitioner submitted that a copy of the written statement is

available in her file. Its copy was also not even filed before this

(2005) 6 SCC 344 BSB, J C.R.P.No.360 of 2020

Court. However, 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 VIII, Rule 1 CPC, vide decision in Salem Advocate Bar

Association, Tamil Nadu vs. Union of India (UOI) AIR 2005

SC 3353. Therefore, even if by chance, the petitioner has filed

before the trial Court a written statement along with the petition,

the same cannot be received as the period stipulated in Order VIII

Rule 1 CPC is completed and very long period of delay happened

thereafter and the petitioner could not show any such exceptionally

hard circumstances which prevented him to bring the case within

the exception provided by the Supreme Court in the Case of Salem

Bar Association (1 supra).

16. The trial Court erred in dismissing the petition under the

impression that the petitioner wanted to receive the written

statement, but in fact, no such prayer is sought by him. The

petitioner sought only to permit him to contest the suit which even

in the absence of petition also is permissible only in respect of

future proceedings.

BSB, J C.R.P.No.360 of 2020

17. Recently, in a case before the Supreme Court in Nanda Dulal

Pradhan & Another v. Dibakar Pradhan & Another5, wherein

similar facts as in the case before this Court, on sufficient reasoning

being shown for setting aside the ex parte decree, the defendants 2

& 3 were allowed to participate in the trial for cross-examining the

witness, but they were not permitted to file the written statement

since they failed to file the written statement in spite of availing

number of opportunities. The operative portion of the judgment

reads as follows:

"4. In view of the above and for the reason stated above the impugned judgment and order passed by the High Court is hereby set aside. The order passed by the First Appellate Court setting aside the ex-parte judgment and decree and restoring the suit is hereby restored. However, it is observed that on restoration of the suit, the defendant Nos.2 & 3 shall not be permitted to file the written statement, as though number of opportunities were given earlier, they did not file the written statement. However, at the same time they may be permitted to participate in the suit and cross-examine the witnesses and make submissions on merits. ...."

Thus, it is settled law that a defendant who is set ex parte can

participate in future proceedings. As such, the petitioner is entitled

only to participate in the future proceedings of the suit, but cannot

file written statement.

Civil Appeal No.4151 of 2022 decided on 11.07.2022 BSB, J C.R.P.No.360 of 2020

18. Accordingly, the Civil Revision Petition is allowed setting aside

the order, dated 27.11.2019, passed in I.A.No.540 of 209 in

O.S.No.235 of 2013 and allowing the said petition. The petitioner is

permitted to contest the suit by participating in the future

proceedings, but without filling the written statement.

There shall be no order as to costs.

Miscellaneous petitions pending, if any, shall stand closed.

________________ B.S BHANUMATHI, J 09-12-2022 RAR