Indian Institute Of Public ... vs Gopal Krishnan And Anr.
2005 Latest Caselaw 1274 Del

JUDGMENT

Swatanter Kumar, J.

Page 0091

1. The plaintiff, Indian Institute of Public Opinion Pvt. Ltd. filed a suit against the defendant, who at one time was employed by the plaintiff. The defendant was under obligation for safety of the documentation, data of the plaintiff and their reputation, particularly in regard to loss in transit. The relationship between the parties remained reasonably workable till 1991, but thereafter due to sudden spurt in their bills for the above market price, they have restrained and the relationship between them came to an end in the year 1995. where after no assignment whatsoever of any data processing work was entrusted to the defendant.. The defendant was even not required to Page 0092enter in the office of the plaintiff. The premises occupied by the defendant were not being vacated and for which earlier no rent or license fee was being charged, the plaintiff asked the defendant to vacate the said premises as well as to pay damages and mesne profits to the plaintiff for the unauthorised and contumacious use and occupation of the portion of the premises at 2, Jeevan Tara Building, Sansad Marg, Parliament Street, New Delhi. In these circumstances the plaintiff has filed a suit against the defendant for injunction, prohibitory as well as mandatory and further with the prayer that the defendant be directed to hand over the possession of the premises to the plaintiff Along with a decree for a sum of Rs. 10,43,463/- against the defendant as mesne profits and electricity as well as water charges. The summons in the suit were issued to the defendants vide order dated 10th September, 1997. The defendants failed to file a written statement within 30 days or even within the extended period, however, they filed an application. Plaintiff filed an application under Order 8 Rule 10 of the Code of Civil Procedure (for short CPC) for pronouncing the judgments against the defendant being IA 11082/97 while the defendant filed an application IA 947/98 praying for the condensation of delay in filing the written statement, but both these applications were disposed of by a common order passed by the Court on 3rd March, 1999 and the written statement was permitted to be taken on record. In the written statement filed by the defendant, he has also raised counter claim against the plaintiff for recovery of Rs. 28.00 lacs on account of damages as stated in para 1 of the facts, giving rise to the counter-claim and a sum of Rs. 5,89,312/-. The amount due to the defendant after adjustment of all the account in relation to the bills submitted during 15th January, 1992 from 31st March, 1995. The defendants had also prayed for a relief of injunction restraining the plaintiff and its agents from dispossessing the defendants from the suit property. To this written statement-cum-counter claim, plaintiff did not file the written statement despite grant of adequate opportunity and much beyond the prescribed period under Order 8 Rule 10 CPC. Vide order 4th March, 2004, the Joint Registrar had observed that if the plaintiff has not filed written statement to the counter-claim of the defendant, the same should be filed within three weeks. In this order, counsel appearing for the plaintiff at the relevant time had stated that the written statement-cum-counter claim had already been filed on 15th December, 2003. From the record it appears that this was not a correct statement. Vide order dated 25th March, 2004, the Court had noticed that despite grant of last opportunity, written statement to the counter-claim have not been filed. It is also noted that thus no further opportunity be granted to file written statement to the counter claim. The Court left the matter at this stage and case proceeded for admission/denial of documents and of framing of issues.

2. It may be noticed, at this stage, that vide order dated 25th March, 2004 the Court had not passed any order stating that a judgment can be passed against the plaintiff in relation to counter claim or that the right of the plaintiff to file written statement to the counter-claim can be forfeited. In fact, it proceeded with the matter and passed such an order in the circumstances of the case. Thereafter the matter remained pending and another counsel was engaged who then filed a fresh application being IA 6210/04 on behalf of the plaintiff under Chapter VI Rule 3 read with section 151 CPC seeking condensation of delay Page 0093in filing the written statement to the counter of the defendant. Reply to this application was filed subsequently and this IA came up for hearing before the Court on 1st September, 2005 and in this application, the plaintiff has prayed that order dated 25th March, 2004 passed by the Joint Registrar be recalled and plaintiff's written statement to the counter claim of the defendant be permitted to be taken on record. The reasons stated in the application was that the plaintiff was under the impression that written statement to the counter claim had already been filed. For this purpose reliance has been placed on the two orders of the Court dated 4th March, 2004 and 25th March, 2004, wherein it was noticed that counter claim has been filed on 15th December, 2003. However, it was later confirmed by the office report of the DR(O) that previous report was incorrect and the written statement has not been filed. It is stated that the delay thus caused in filing of the written statement which had been placed on record of the case, filed on 19th May, 2004 in the Registry of this Court be permitted to be taken on record. The plaintiff had filed separate replication and separate written statement to the counter-claim. Both of them were filed on 19th May, 2004 and all this time has been spent in consideration of the present application. The averments made in IA 6210/04 have been disputed by the defendant/counter claimant and it is stated that the plaintiff was in possession of copy of the written statement filed on behalf of the defendant prior to 19.5.2004 and they ought to have filed the written statement to the counter claim much earlier date and in any case the right to file written statement have been closed vide order dated 25th March, 2004. It is further submitted that the time for filing the written statement had expired on 25th March, 2004. In these circumstances, it is submitted that the application is liable to be dismissed.

3. From the above narrated facts, it is clear that there was a bonafide mistakes on the part of the plaintiff who made statement before the Joint Registrar on 4th March, 2004 and then on 25th March, 2004 that the written statement have been filed. This was not even stated to be incorrect as per the report of the Registry. It was only when the DR(O) placed the separate report that the written statement to the counter claim had not been filed. After the plaintiff had engaged a new counsel, he took steps for condensation of the delay in filing the written statement and the written statement to the counter-claim of the plaintiff was filed on 19th May, 2004. In order to make the facts clear, reference to the order of the Registrar dated 25th March, 2004 would be more appropriate, but vide that order the right of the plaintiff had not been closed by the order of the Court. The Joint Registrar did not forfeit the right of the plaintiff to file written statement to the counter claim of the defendant, but only noticed it that no further opportunity can be granted to the plaintiff. The JR just stopped on passing an order to that effect, observing that the decree should be passed in terms of the provisions of Order 8 Rule 10 CPC in favor of the defendant or that the right of the plaintiff is forfeited. In fact the intent of the order was that the case be listed before the Court for appropriate directions. The doubt has been raised as to the competency of the Registry to pass an effective order for non-compliance or otherwise in relation to provisions of Order 8 Rule 10 relating to filing of the written statement. It is not necessary for the Court to go into this question in the present case and that too at this stage of the proceedings.

Page 0094

4. Suffice it to note that no effective order has been passed pronouncing a judgment against the plaintiff for non-compliance of the Order 8 Rule 10 CPC nor that the right stand forfeited. This order could be passed by the Court in its wisdom. The Court approved the order of the Joint Registrar and permitted the suit as well as the counter-claim to be proceeded further in accordance with law i.e. for admission/denial of documents and framing of issues. The provisions of Order 8 Rule 10 of the CPC are directory being part of the procedural law. They are not mandatory provisions which leaves no element of discretion with the Court in regard to passing an order as the Court may deem proper in the given facts. Reference can be made to the judgment of this Court in the case of Indradhanush TV Pvt. Ltd. v. National Film Development Corporation Ltd. (S.No.232/2004) decided today itself where the Court after discussing and applying the judgment of the Supreme Court on facts held as under :-

Whether the provisions of Order 8 Rules 1 and 10 of the Code are directory/regulatory or are mandatory is not more res integra and has been squarely answered by the Supreme Court in the case of Kailash v. Nanhku and Ors. where the Supreme Court considered at great length the historical background of introduction of the amended provisions of Order 8 in the Code and their effect. It was held by the Court :-

41. Considering the object and purpose behind enacting Rule 1 of Order 8 in the present form and the context in which the provision is placed, we are of the opinion that the provision has to be construed as directory and not mandatory. In exceptional situations, the court may extend the time for filing the written statement through the period of 30 days and 90 days, referred to in the provision, has expired. However, we may not be misunderstood as nullifying the entire force and impact - the entire life and vigour - of the provision. The delaying tactics adopted by the defendants in law courts are now proverbial as they do stand to gain by delay. This is more so in election disputes because by delaying the trial of election petition, the successful candidate may succeed in enjoying the substantial part, if not in its entirety, the term for which he was elected even though he may lose the battle at the end. Therefore, the judge trying the case must handle the prayer for adjournment with firmness. The defendant seeking extension of time beyond the limits laid down by the provision may not ordinarily be shown indulgence.

42. Ordinarily, the time schedule prescribed by Order 8 Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defense and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the Court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for the asking, more so, when the period of 90 days has expired. The extension can be only by way Page 0095of an exception and for reasons assigned by the defendant and also recorded in writing by the court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order 8 Rule 1 of the Code was being allowed to be beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended.

43.A prayer seeking time beyond 90 days for filing the written statement ought to be made in writing. In its judicial discretion exercised on well-settled parameters, the court may indeed put the defendants on terms including imposition of compensatory costs and may also insist on an affidavit, medical certificate or other documentary evidence (depending on the facts and circumstances of a given case) being annexed with the application seeking extension of time so as to convince the court that the prayer was founded on grounds which do exist.

44. The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the court. In no case, shall the defendant be permitted to seek extension of time when the court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel. The court may impose costs for dual purpose: (i) to deter the defendant from seeking any extension of time just for the asking, and (ii) to compensate the plaintiff for the delay and inconvenience caused to him.

45. However, no straitjacket formula can be laid down except that the observance of time schedule contemplated by Order 8 Rule 1 shall be the rule and departure there from an exception, made for satisfactory reasons only. We hold that Order 8 Rule 1, though couched in mandatory form, is directory being a provision in the domain of processual law.

5. Still in a more recent judgment again the Supreme Court in the case of Smt. Rani Kusum v. Smt. Kanchan Devi and Ors. JT 2005 (7) 409 discussed the principles governing provisions of Order 8 in the above regard with some elaboration and held as under :-

Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decision should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.

In Topline Shoes Ltd. v. Corporation Bank , the question for consideration was whether the State Consumer Disputes Redressal Page 0096Commission could grant time to the respondent to file reply beyond total period of 45 days in view of Section 13(2) of the Consumer Protection Act, 1986. It was held that the intention to provide time frame to file reply is really made to expedite the hearing of such matters and avoid unnecessary adjournments. It was noticed that no penal consequences had been prescribed if the reply is not filed in the prescribed time. The provision was held to be directory. It was observed that the provision is more by way of procedure to achieve the object of speedy disposal of the case.

The use of the word `shall' in Order VIII 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. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure are handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.

In construing this provision, support can also be had from Order VIII Rule 10 which provides that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to suit as it thinks fit. In the context of the provision, despite use of the word `shall', the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII Rule 1. There is no restriction in Order VIII Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to `make such order in relation to the suit as it thinks fit'. Clearly, therefore, the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that 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 Rule1.

Page 0097

18. The Bench in para 54 after considering the Committee's report has observed as follows:

Having regard to the constitutional obligation to provide fair, quick and speedy justice, we direct the Central Government to examine the aforesaid suggestions and submit a report on this Court within four months.

19. After elaborating the purpose for introduction of Order VIII Rule 1, this Court in Kailash's case (supra) at paragraph 45 observed that no straightjacket formula can be laid down except that observance of time schedule contemplated by Order VIII Rule 1 shall be the rule and departure there from an exception, made for satisfactory reasons only. The conclusions have been summed up in Para 46. The relevant portion reads as follows:

(iv) the purpose of providing the time schedule for filing the written statement under Order VIII Rule 1 CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though the language of the proviso to Rule 1 Order VIII CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the procedural law, it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by Order VIII Rule 1 CPC is not completely taken away.

(v) Though Order VIII Rule 1 CPC is a part of procedural law and hence directory, keeping in view the need for expeditious trial of civil cases which persuaded Parliament to enact the provisions in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure there from would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the court on its being satisfied. Extension of time may be allowed if it is needed to be given for circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a case.

In view of the above recent judgments of the Supreme Court hardly any controversy need to be entertained in regard to the application of these Page 0098provisions in law. What is significant is applying these provisions to the facts and circumstances of each case.

Applying to above principles to the facts of the present case and particularly in view of the fact that no application itself was filed by the defendants for passing a decree under Order 8 Rule 10 CPC in relation to the counter claim raised in the written statement for all this period, I am of the considered view that it will be causing grave injustice and hardship to the plaintiff if the written statement which has already been on the record of the file since May, 2004 is not permitted to be taken on record and the delay in filing the written statement from March, 2004 to May, 2004 is not condoned. That result is also directly attributable to the plaintiff but was an error on the part of counsel who made a statement on 4th and 25th March, 2004 that written statement to the counter-claim has already been filed. These are some peculiar circumstances which would tilt the equity more in favor of the applicant rather than the plaintiff who himself was not vigilant of the right of the benefit which would accrue to him under the provision of Order 8 Rule 10 CPC.

6. In view of my above discussion IA 6210/2004 is allowed and the delay in filing the written statement is condoned. The written statement to the counter claim of the plaintiff which has already been filed, is ordered to be taken on record. The IA is accordingly disposed of while leaving the parties to bear their own costs. The defendant may file replication to the written statement filed by the plaintiff to the counter-claim of the defendant within four weeks from today with advance copy to the other side.

7. List this matter before the Joint Registrar on 7th November, 2005 for completion of pleadings.