Vivek S/O Late R.B. Mokadam vs Smt. Kiran W/O S.K. Nashine
2007 Latest Caselaw 814 Bom

JUDGMENT

A.B. Chaudhari, J.

1. By the present writ petition, the petitioner has challenged order dated 5-7-2005 below Exh. l6-A in Special Civil Suit No. 368/2004.

Facts:

2. The petitioner is the original plaintiff who filed a civil suit bearing Special Civil Suit No. 368/2004 in the Court of IInd Jt. Civil Judge (S.D.), Nagpur for possession of the suit property. Respondent Smt. Kiran also had filed a suit bearing Special Civil Suit No. 280/2002 for declaration and specific performance of contract. After issuance of suit summons in Special Civil Suit No. 368/2004, the respondent/defendant who was served on 18-6-2004 filed an application under Section 10 of the Code of Civil Procedure for stay of the suit which was decided on 29-10-2004. A writ petition was then preferred in this Court against that order. The defendant made an application (Exh. 9) in the suit on 17-8-2004 for grant of four weeks' time to file written statement. That application was granted by the trial Court by way of last chance. Thereafter, the respondent again filed applications Exh. 10, 14, 15 and 16 which remained pending without any order thereon. As such by order dated 6-1-2005, the trial Court rejected all these applications including Exh. 16. Thereafter, the respondent filed an application (Exh. 16-A) for taking written statement on record on 10-1-2005 which was strongly opposed by the petitioner. This application (Exh. 16-A) was allowed by the trial Court by the impugned order dated 5-7-2005. Hence, this writ petition.

3. This writ petition was called out for final hearing on 25-7-2007. Petitioner in person was heard and Counsel for the respondent remained absent. The case was closed for orders. At 4 :30 p.m., Advocate Shri Agrawal on the same day i.e. on 25-7-2007 mentioned that Counsel for respondent Mr. V.V. Bhangade was not feeling well and, therefore, went home. On the next day i.e. on 26-7-2007, Advocate Shri Bhangade appeared and only tendered xerox copy of judgment reported in 1986 Mh.LJ. 525, Western Coalfields Ltd. through General Manager (Planning), Nagpur v. Rajkumar Kanhiyalal Bhiwapurkar and Ors. but did not argue the petition and requested to consider the said decision. Hence. this Court closed the case for orders.

Arguments;

4. The petitioner appeared in person and made following submissions;

(1) The amended provision relating to filing of written statement being mandatory and since the written statement was sought to be filed admittedly after 90 days and in this case almost after about one year, the trial Court erred in allowing application (Exh. l6-A) by the impugned order.

(2) The trial Court committed an error of jurisdiction inasmuch as earlier it had rejected the applications Exh. 10, 14 and 15 by order dated 6-1-2005 for the reasons given in the said order and, therefore, it had no jurisdiction to again entertain application (Exh.l6-A).

(3) The trial Court by allowing application has caused prejudice to the petitioner and, therefore, the impugned order is liable to be quashed and set aside.

(4) The conduct of the respondent/defendant is such that defendant is protracting the litigation by adopting such methods and the petitioner is being put to serious prejudice.

Consideration:

5. Having heard petitioner in person and having seen the xerox copy of judgment which was tendered by Shri V.V. Bhangade, learned Counsel for respondent, it is seen that the respondent received a suit summons on 26-6-2004 and, thereafter, applied on 17-8-2004 by application (Exh.9) praying for four weeks time which was granted as a last chance. Again applications Exh.10, 14, 15 and 16 were made by the respondent, but it appears that they remained pending for orders. It then appears that the learned trial Court rejected these applications by order dated 6-1-2005. Lastly it appears that the respondent/defendant filed an application (Exh. l6-A) for permission to file written statement along with written statement. The trial Court allowed the said application for the reasons given in the impugned order.

6. Now having considered the contentions raised by the petitioner in person, the issue regarding jurisdiction of the trial Court raised by him to again entertain an application (Exh. 16-A) after rejection of earlier application is covered by the Division Bench decision of this Court in the case of Western Coalfields Ltd., through General Manager (Planning), Nagpur v. Rajkumar Kanhiyalal Bhiwapurkar and Ors. reported in 1986 Mh.LJ. 525. This Court has clearly held that there is no bar provided under Order 8, Rule 5(2) for accepting the written statement after rejection of earlier applications for adjournment/time to file written statement, and on the contrary Section 151 of the Code would come into play and the Court can always entertain such application for permission to file written statement under Section 151 of the Code of Civil Procedure. 1, therefore, do not find that the trial Court has committed any jurisdictional error in allowing the application (Exh. l6-A) of the impugned order.

7. Now insofar as contention regarding expiry period of 90 days is concerned, the provision has been found to be directory and not mandatory. The trial Court has adverted to the reasons in its impugned order for the delay in filing written statement, namely, that applications for stay of suit, injunction etc. were being heard and the defendant went on making applications for grant of time to file written statement. At any rate, when Exh.l6-A was filed the same was along with written statement. Now the three Judge Bench decision of the Hon'ble Supreme Court in the case of R.N. Jadi and brothers and Ors. v. Subhashchandra would throw better light on the subject. Relevant paragraphs from the said judgment are quoted as under;

8. 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.

9. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the Civil Procedure Code or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice.

12. ...A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. [See Shreenath and Anr. v. Rajesh and Ors. ].

8. In view of the factual and legal position set out above, in my opinion, the impugned order does not deserve any interference. However, since the progress of the suit has been delayed because of long time taken by the respondent it is necessary to direct the trial Court to decide the suit within a stipulated period and also to award additional costs to the petitioner. Hence, the following order.

9. The writ petition is dismissed. The respondent to pay costs of Rs. 10,000/- (Rupees Ten Thousand Only) to the petitioner. The trial Court is directed to decide the Special Civil Suit No. 368/2004 within a year from today.

10. Rule accordingly.