Chattisgarh High Court

Nizam Ali vs Krishna Kumar on 28 November, 2022

                                 1

                                                                 AFR

       HIGH COURT OF CHHATTISGARH, BILASPUR

                       WP227 No. 654 of 2019

   1. Nizam Ali S/o Sunhar Ali, Aged About 40 Years Caste -
      Musalman

   2. Hakim Mohammad S/o Late Subrati Mohammad, Aged About 40
      Years Caste - Musalman,

     Both R/o Karaihapara, Ratanpur, Tehsil Kota, District Bilaspur
     Chhattisgarh. (Plaintiff)

                                                       ---- Petitioner

                              Versus

   1. Krishna Kumar S/o Ramkhilawan Aged About 42 Years Caste -
      Suryavanshi, R/o Village Madanpur, Tehsil And District Bilaspur
      Chhattisgarh

   2. Chhattisgarh State Through Collector, Bilaspur Chhattisgarh

                                                    ---- Respondent

For Petitioners Mr. Sudhir Agarwal, Advocate For Respondent No.1 Mr. Achyut Tiwari, Advocate For Respondent/State Mr. Shakti Singh Thakur, Panel Lawyer

SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari

Order On Board 28.11.2022

1. Heard.

2. This petition has been preferred against the order dated

9.5.2019 in Civil Suit No.3-A/2019 passed by the Eight Additional

District Judge, Bilaspur, whereby, an application filed by the

petitioners/plaintiffs under Order 8 Rule 10 of CPC, has been

dismissed.

3. Mr. Sudhir Agarwal, learned counsel for the petitioner would

submit that the plaintiffs have filed a suit on 02.1.2019, in

which, defendant No.1 has appeared on 17.1.2019, but he has

not filed the written statement within the stipulated period of

30 days as prescribed under Order 8 Rule 1 of CPC. Though

respondent No.1 has filed the written statement within 90 days

from the date of service of summons, but he neither filed any

application for further extension of limitation to file the written

statement nor stated the reason for late filing of the written

statement. He further submits that the petitioners/plaintiffs

have moved an application on 21.2.2019 under Order 8 Rule 10

of CPC as the defendant has failed to file the written statement

under Order 8 Rule 1 of CPC within the time permitted or fixed

by the Court. Consequently, the trial Court, in an arbitrary

manner, dismissed the application of the plaintiffs filed under

Order 8 Rule 10 of CPC vide the impugned order. Therefore,

learned counsel prays to quash the impugned order and direct

the trial Court to not to read the written statement filed on

14.3.2019 by respondent No.1/defendant, in the proceedings of

the case. He would place reliance on the judgment of the

Supreme Court rendered in the matter of M/s. SCG Contracts

India Pvt. Ltd. Vs. K.S. Chamankar Infrastructure Pvt. Ltd. Ad

others, AIR 2019 SC 2691 and Mohammed Yusuf Vs. Faij

Mohammad and others, (2009) 3 SCC 513.

4. On the other hand, Mr. Achyut Tiwari, learned counsel for

respondent No.1 would support the impugned order and submit

that within the stipulated period of 90 days, the written

statement has been filed and the procedural law cannot be used

for punishment of the parties in the conduct of the

proceedings. He places reliance on the judgment of the

Supreme Court rendered in the matter of Prakash Corporates

Vs. Dee Vee Projects Limited, (2022) AIR (SC) 946.

5. Heard learned counsel for the parties and perused the record

with utmost circumspection.

6. Time and again, it has been held by Hon'ble the Supreme Court

that the judiciary is respected not on account of its power to

legalize injustice on technical grounds but because it is capable

of removing injustice and is expected to do so.

7. It is also well settled principle of law that the Courts are meant

to do substantial justice between the parties and the technical

rules or procedures should not be given precedence over doing

substantial justice. Justice according to law does not merely

mean technical justice but means that law has to be

administered to advance justice. To achieve such goal, the Civil

Procedure Code has been entrusted wide power, which is

inherent in every Court and on such term, the Court should pass

orders as it may thinks fit for the ends of justice or to prevent

abuse of the process of the Court.

8. In the present matter, on perusal of the order sheets, it appears

that the trial Court has not given a single warning to the

defendant to file the written statement and from time to time,

extended the period of filing of the written statement.

Subsequently, the defendant/respondent No.1 filed his written

statement on 14.3.2019 i.e. within 90 days and consequently

vide the impugned order dated 9.5.2019, the application

preferred by the plaintiffs/petitioners on 21.2.2019 has been

dismissed.

9. In Mohammed Yusuf(supra) , the scope of Order 8 Rule 1 and

the proviso thereto has been clarified. The relevant paras 9 to

11 reads thus :

9. It is urged that the provisions of Order 8 Rule 1 of

the Code of Civil Procedure having been held to be

directory in nature by this Court in Kailash Vs.

Nanhku and Ors. - (2005) 4 SCC 480, this Court may

not exercise its discretionary jurisdiction under

Article 136 of the Constitution of India. Order 8 Rule

1 of the Code of Civil Procedure reads thus:

" 1. 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.]

Although in view of the terminologies used therein the period of 90 days prescribed for filing written statement appears to be a mandatory provision, this Court in Kailash(supra) upon taking into consideration the fact that in a given case the defendants may face extreme hardship in not being able to defend the suit only because he had not filed written statement within a period of 90 days, opined that the said provision was directory in nature. However, while so holding this Court in no uncertain terms stated that defendants may be permitted to file written statement after expiry of period of 90 days only in exceptional situation.

10. The question came up for consideration before this Court in M. Srinivasa Prasad & Ors. Vs. The Comptroller & Auditor General of India & Ors.

- 2007 (5) SCALE 173, wherein a Division Bench of this Court upon noticing Kailash (supra) held as under:

" 7. Since neither the trial Court nor the High Court have indicated any reason to justify the acceptance of the written statement after the expiry of time fixed, we set aside the orders of the trial Court and that of the High Court. The matter is remitted to the trial Court to consider the matter afresh in the light of what has been stated in Kailash's case(supra). The appeal is allowed to the aforesaid extent with no order as to costs."

11. The matter was yet again considered by a three-judge Bench of this Court in R.N.Jadi & Brothers and Ors. Vs. Subhashchandra - (2007) 6 SCC 420. P.K. Balasubramanyan J., who was also a member in Kailash(supra) in his concurring judgment stated the law thus:

"14. It is true that procedure is the handmaid of justice. The court must always be anxious to do justice and to prevent victories by way of technical knockouts. But how far that concept can be stretched in the context of the amendments brought to the Code and in the light of the mischief that was sought to be averted is a question that has to be seriously considered. I am conscious that I was a party to the decision in Kailash Vs. Nanhku which held that the provision was directory and not mandatory. But there could be situations where even a procedural provisional could be construed as mandatory, no doubt retaining a power in the Court, in an appropriate case, to exercise a jurisdiction to take out the rigour of that provision or to mitigate genuine hardship. It was in that contest that in Kailash Vs. Nanhku it was stated that the extension of time beyond 90 days was not automatic and that the court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from the time-

limit fixed by the Code and the power inhering in the court in terms of Section 148 of the Code. Kailash is no authority for receiving written statement, after the

expiry of the period permitted by law, in a routine manner.

15. A dispensation that makes Order 8 Rule 1 directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasise that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order 8 Rule 1 must be adhered to and that only in rare and exceptional cases, will the breach thereof will be condoned. Such an approach by courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in courts. The lament of Lord Denning in Allen Vs. Sir Alfred McAlpine & Sons that law's delay have been intolerable and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times?"

10. In Prakash Corporates (supra), the judgment rendered in the

matter of M/s. SCG Contracts India Pvt. Ltd (supra) has been

discussed and finally, considering the peculiar circumstances of

that case, reiterated the principle that the rules of procedure

are essentially intended to sub-serve the cause of justice and

not for punishment of the parties in conduct of the

proceedings. Of course, in the ordinary circumstances, the

mandate of Rule 1(1) of Order V, Rule 1 or Order VIII as also

Rule 10 of Order VIII, as applicable to the Commercial dispute of

a Specified Value, do operate in the manner that after expiry of

120th day from the date of service of summons, the defendants

forfeits the right to submit his written statement and the Court

cannot allow the same to be taken on record, but these

provisions are intended to provide the consequences in relation

to a defendant who omits to perform his part in progress of the

suit as envisaged by the rules of procedure and are not intended

to override all other provisions of CPC like those of Section 10.

11. Further, in the matter of State of Bihar and others Vs. Bihar

Rajya Bhumi Vikas Bank Samiti, (2018) 9 SCC 472, the

following has been held in para 12 :

"12. To similar effect are the observations of this Court in

Salem Advocate Bar Association v. Union of India, (2005)

6 SCC 344 at paragraph 20, which is reproduced

hereinbelow:

"20. The use of the word "shall" in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word "shall" is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice."

12. Recently, Hon'ble the Supreme Court in the matter of Bharat

Kalra Vs. Raj Kishan Chabra, 2022 SCC OnLine SC 613, held

that the suit for injunction filed by the plaintiff is not the one

which is governed by the Commercial Court Act, 2015.

Therefore, the time limit for filing of the written statement

under Order VIII Rule 1 of CPC is not mandatory in view of the

judgment of the Supreme Court rendered in the matter of

Kailash (supra).

13. Reverting back to the facts of the present case, it is quite vivid

that the trial Court itself has extended the time for filing of the

written statement by the defendant/respondent No.1 and the

defendant has filed the written statement within 90 days,

though grant of extension of time beyond 30 days is not

automatic, therefore, the trial Court is expected to record the

reasons and in appropriate cases, obtain application for

extension of time.