Sardar Vallabhbhai Patel Smarak ... vs Samarth Nangia
2011 Latest Caselaw 698 Del

         THE HIGH COURT OF DELHI AT NEW DELHI
%               Judgment Reserved on: 04.02.2011
                Judgment Pronounced on: 07.02.2011
+ IA Nos 16386/2010, 16007/2010, 1679/2011 in
CS(OS) No. 727/2010

SARDAR VALLABHBHAI PATEL
SMARAK TRUST                                  .....Plaintiff

                           - versus -
SAMARTH NANGIA                                .....Defendant

Advocates who appeared in this case:
For the Plaintiff:      Mr. V.P.Choudhary, Sr.            Adv.
                        with Mr.G.Tushar, Adv.

For the Defendant:   Mr. Rajiv Kumar Garg, Adv.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1.

Whether Reporters of local papers may Yes be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported Yes in Digest?

V.K. JAIN, J

1. Vide IA No. 18634/2010, the plaintiff has sought

recall of the order dated 26th August, 2010, whereby this

Court noting that though as per affidavit of service the

defendant was stated to have been served, the ordinary

process, had been received with the report „defendant is out

of station‟, and further noting that Registered A.D. cover

had not been received back, directed issue of fresh process

to the defendant for 02nd November, 2010. It is alleged that

on 03rd July, 2010, the defendant was personally served at

his residence at A-7, NDSE, Part-II, New Delhi, on

identification by Shri S.S. Mishra, representative of the

plaintiff. It is further alleged in the application that Senior

Superintendent of Post Offices, vide his letter dated 22 nd

September, 2010 sent to the counsel for the plaintiff, has

confirmed that Registered Letter No. 9163 received from

Delhi High Court on 06.06.2010 was delivered to the

addressee on 07.06.2010. In view of personal service as well

as service by registered post, the plaintiff has sought recall

of the order dated 26.08.2010.

2. Vide IA No. 16007/2010, the plaintiff has sought

pronouncement of judgment against the defendants on the

ground that despite service of summons on him, he had

filed failed to file written statement within the time

prescribed in this regard.

3. Vide IA No. 16386/2010, the defendant had sought

two weeks‟ time to file the written statement. It is alleged in

this application that the defendant has never been served

with any notice from the Court. It is further that nobody

was residing at the address given in the notice for last 8

months and the said house was later vacated by the father

of the defendant on 27.09.2010. On that day, the brother of

the defendant went to the above-referred place for vacating

the premises and at that time, the guard handed over to

him a bulk of mails and couriers, wherein a summon of the

above case was found along with a copy of the plaint. It is

further alleged that on enquiry, the defendant came to know

that the matter was fixed for 22.11.2010. Since he was not

aware that the statement was required to be filed within

prescribed time, he did not engage a counsel up to

20.11.2010 and, therefore, the written statement could not

be filed within the stipulated period of 30 days which

expired on 26.10.2010.

4. IA No. 1679/2011 has been filed by the defendant

seeking condonation of delay in filing the written statement.

It is alleged in the application that on account of downfall in

his business, the defendant was not residing in the

premises and a guard used to collect the mails. It has been

requested that even if there is some delay in filing the

written statement, the same may be condoned in the

interest of justice.

5. During the course of arguments, it was expressly

admitted by the learned counsel for the defendant that the

summon sent to the defendant by registered post was

actually received at A-7, NDSE Part-I, New Delhi on 07th

June, 2010. He also admitted that the suit summon was

also received by the defendant personally on 03 rd July,

2010.

6. Order VIII Rule 1 of the Code of Civil Procedure to

the extent it is relevant provides that the defendant shall

within 30 days from the date of service of summons on him,

present a written statement of his defence. It provides that

where the defendant fails to file the written statement within

the period of 30 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, but, which shall not be later than

90 days from the date of service of summon.

7. It was thus to be seen that as per the statutory

provision, the normal period prescribed for filing written

statement is 30 days from the date of receipt of summon

though for reasons to be recorded into writing, the Court

can allow the written statement to be filed at a later date,

which is not beyond 90 days from the date of service of

summon by the defendant. Written statement has been

filed on 08th December, 2010, i.e., more than 6 months after

receipt of summon by Registered Post and more than 5

months after receipt of summon through process server.

8. In Kailash vs. Nanhku and Ors. (2005) 4 SCC

480, Supreme Court, inter alia, observed as under:

"Three things are clear. Firstly, a careful reading of the language in which Order VIII, Rule 1 has been drafted, shows that it 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. Secondly, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order VIII, Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of 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. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried.

It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order VIII is circumscribed by the words - "shall not be later than ninety days" but the consequences flowing from non-extension of time are not specifically provided though they may be read by necessary implication. Merely, because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form.

Considering the object and purpose behind enacting Rule 1 of Order VIII 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 though 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 candidates may succeed in enjoying the substantial part, if not in its entirety, the term for which he was elected even though he may loose 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.

Ordinarily, the time schedule prescribed by Order VIII, 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 defence 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 asking more so, when the period of 90 days has expired. The extension can be only by way of 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 VIII, Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons 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."

(emphasis supplied)

In Salem Advocate Bar Association, Tamil Nadu

v. Union of India, 2005 (6) SCC, 344, Supreme Court, inter

alia, observed as under:

"It has been common practice for the parties to take long adjournments for filing written statements. The legislature with a view to curb this practice and to avoid unnecessary delay and adjournments, has provided for the maximum period within which the written statement is required to be filed. The mandatory or directory nature of Order VIII Rule 1 shall have to be determined by having regard to the object sought to be achieved by the amendment. It is, thus, necessary to find out the intention of the legislature. The consequences which may follow and whether the same were intended by the legislature have also to be kept in view."

The following view was taken by the Court with

respect to extension of time beyond the prescribed period of

90 days:

"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 Rule 1."

                                       (emphasis supplied)

            In       R.N.   Jadi   &   Brothers     and    Ors      vs.

Subhashchandra (2007) 6 SCC 420 which is a judgment

relied upon by the learned counsel for the defendant,

referring to its earlier decisions in the case of Salem

Advocate Bar Association, Tamil Nadu (supra), Kailash

(supra), Rani Kusum v. Kanchan Devi and Ors., 2005(6)

SCC 705 and Shaikh Salim Haji Abdul Khayumsab v.

Kumar and Ors. 2006 (1) SCC 46, Supreme Court

reiterated that the provisions of Order VIII Rule 1 of the

Code of Civil Procedure are directory in nature. The Court

(Hon‟ble Mr. Justice P.K. Balasubramanyan), however,

cautioned as under:

"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 case, 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."

In the case before Supreme Court, there was delay

of two days beyond 90 days from the date of service of

summon. The Trial Court had accepted the written

statement, whereas the High Court had taken a view that

the provisions of Order VIII Rule 1 of CPC being mandatory,

the Trial Court could not have accepted the written

statement filed beyond 90 days from the date of service. It

was also found that the Trial Court had granted time to the

defendant up to 08.06.2004 to file written statement and

written statement was actually filed on 08.06.2004. The

judgment of the High Court was, therefore, set aside.

In Aditya Hotels (P) Ltd. Vs. Bombay Swadeshi

Stores Ltd. and Ors. (2007) 14 SCC 431, the Trial Court

had extended the time for filing written statement without

recording any reasons. The petition filed against the order of

the Trial Court was dismissed by the High Court. The

matter was remitted by the Supreme Court to the Trial

Court to consider it afresh in the light of the observations

made by it in the case of Kailash (supra), wherein it was

observed that extension can be only by way of an exception

and for the reasons assigned by the defendant and also

recorded in writing by the Court to its satisfaction.

In Zolba Vs. Keshao and Ors. 2008 (11) SCC 769,

a judgment relied upon by the learned counsel for the

defendant, Supreme Court found that the appellant under a

bona fide plea and on instructions of his counsel in the Trial

Court could not file written statement as he was advised by

his counsel that the written statement could be filed after

the decision of appeal pending before the District Court.

However, when advised by the counsel, he filed an

application for accepting the written statement on

condonation of delay. Considering the above noted facts and

circumstances, Supreme Court was of the view that it was

not in a position to hold that the appellant was not entitled

to file written statement even after expiring of the period

mentioned in the proviso to Order VIII Rule 1 of CPC and

was of the view that it would be open to the Court to permit

filing of the written statement if exceptional circumstances

have been made.

In Mohammed Yusuf Vs. Faij Mohammad and

Ors. (2009) 3 SCC 513, the application filed by the

defendant/appellant for condonation of delay in filing the

written statement was rejected by the High Court. The

defendant in that case was served on 06th July, 2002 and

appeared through counsel on 19 th July, 2002. He filed

applications for extension of time for filing written statement

a number of times. On 31.01.2005, the plaintiff/appellant

also filed an application for pronouncement judgment in

terms of Order VIII Rule 10 on the premise that the

defendant did not file any written statement. On the same

date, the defendants filed an application for written

statement without filing an application for condonation of

delay in filing written statement. The application was

rejected by the Trial Court. The High Court, however,

permitted the defendant to contest the matter on merits

subject to payment of costs of Rs 10,000/-. Referring to the

observations made by it in the case of R.N. Jadi (supra),

wherein it was observed that extension of time beyond 90

days was not automatic and 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 invoking the inherent power of the Court and that

its earlier decisions in the case of Kailash (supra) was no

authority for receiving the written statement after the expiry

of the period permitted by law in a routine manner,

Supreme Court was of the view that the High Court could

not have allowed the writ petition, particularly when the

Trial Judge as well as the Divisional Court had assigned

sufficient and cogent reasons for in support of their orders .

9. The proposition of law which emerges from this

case is that despite use of the word „shall‟ therein though

the provisions contained in Order VIII Rule 1 of CPC are not

mandatory in nature, the time beyond 90 days is not

automatic to be granted in course, merely on asking. Filing

written statement preferably within 30 days and on reasons

being given, within 90 days from the date of service of

summon is the rule and extension of time beyond 90 days is

the exception to be allowed only where the Court is satisfied

that refusal to extend time is likely to result in miscarriage

of justice.

The Court needs to guard themselves against

misuse of an unduly liberal approach in extending time

beyond 90 days, lest such an approach is misused by

unscrupulous litigants to deliberately withhold filing of

written statement with a view to delay progress of the trial

and then come out with an application for extension of time

for the purpose. There is no dearth of litigants who would

not hesitate in adopting dilatory tactics so as to postpone

the outcome of a civil litigation, wherever they find the law

and rules of procedure to be excessively soft and prone to

misuse.

The defendant seeking extension of time beyond 90

days is required to disclose cogent and convincing grounds

which would entitle him to invoke the inherent power of the

Court for extension of time, beyond the prescribed period of

90 days. The Court needs to be satisfied that the case before

it was a genuine case and refusal to grant extension of time

is likely to cause grave hardship to the defendant which, in

the facts and circumstances of the case, he ought not to

suffer.

It is also evident from the above-referred decisions

of Supreme Court that extension of time beyond 90 days

cannot be granted as a matter of course and the discretion

vested in the Court needs to be exercised with due care and

caution so as to ensure that an unscrupulous litigant is not

able to circumvent the time limit fixed by the Legislature,

unless he was prevented, on account of reasons beyond his

control, from filing written statement within the prescribed

period of 90 days.

10. Applying the aforesaid proposition of law to the

facts of this case, I find that there is absolutely no

explanation from the defendant as to why he did not file

written statement within 30 days of receipt of summon from

the process server on 03rd July, 2010 along with a copy of

the plaint. The plea taken by the defendant that he was not

aware of the requirement to file written statement within 30

days is devoid of any merit since the summon issued by the

Court expressly directed him to file written statement within

30 days from the date of service and this is not the case of

the defendant that he is an illiterate person or that he was

not conversant with English language. This is the position if

I accept the plea of the defendant that the summon received

by registered post on 07th June, 2010 was lying with the

guard and was given to his only in the month of September,

2010, though prima facie this does not appear to be correct

since the defendant personally received summon from the

process server at the very same place on 03 rd July, 2010. I,

therefore, hold that the defendant had failed to make out a

case for extension of time beyond 90 days, for filing written

statement. Neither any exceptional circumstance justifying

invoking of inherent power of the Court for extension of time

beyond 90 days has been made out by him nor do I find it to

be a case of genuine hardship, where a defendant, despite

due diligence, was prevented by reasons beyond his control

from filing written statement within the prescribed time.

11. More importantly, it has clearly been established

that the defendant has made a false averment in IA No.

16386/2010 dated 25.11.2010, seeking two weeks‟ time to

file written statement. In para 3 of the application, the

defendant categorically stated that he had never been

served with any notice from this Court. This statement,

contained in the application, is, obviously, false since it has

been admitted by him during the course of arguments that

he had personally received the summon issued by this

Court on 03rd July, 2010. Since IA No. 16386/2010 was

supported by an affidavit dated 29th November, 2010, it is

also evident that a false affidavit has been filed by the

defendant in support of this application. In fact, even in IA

No. 1679/2011, the defendant did not clearly admit receipt

of summon by him on 3rd July, 2010 and claimed that in

the previous application he had stated that he had not been

served with any notice from the Court, because he could not

recollect any such summon being received by him. It is

patently absurd even to suggest that the defendant had

forgotten the receipt of an important document such as the

summon, issued by this Court, despite his having

acknowledged the receipt of the summon in writing. The

endorsement dated 03rd July, 2010 made by the defendant

on the summon dated 04th June, 2010 issued by this Court

contains admission of the receipt of notice along with copy,

meaning thereby that the copy of the plaint was also

received by him along with the summon. In any case, this is

not the plea of the defendant that he had received the

summons without copy of the plaint. The report of the

process server also shows that the copy of the plaint was

delivered to the defendant along with the suit summon on

that date.

12. In K.D. Sharma v. Steel Authority of India Ltd.,

(2008) 12 SCC 481, the appellant had sought to create an

impression as if no notice was ever given to him nor was he

informed about the consideration of cases of eligible and

qualified bidders, in pursuance of the orders passed by the

High Court in review, which had been confirmed by the

Supreme Court. The true facts were found to be contrary to

what the appellant had sought to be placed before the

Court. Notice had been issued to him by SAIL and he had

also responded to in writing. The Court felt that the

appellant had not placed all the facts before the Court

clearly, candidly and frankly. The Court was of the view

that a person approaching the Court must disclose all

material facts without any reservation even if they are

against him, because "the court knows law but not facts". It

was held that if the applicant does not disclose all the

material facts fairly and truly but states them in a distorted

manner and misleads the court, the court has inherent

power in order to protect itself and to prevent an abuse of

its process to discharge the rule nisi and refuse to proceed

further with the examination of the case on merit. If the

court does not reject the petition on that ground, the court

would be failing in its duty. During the course of judgment,

Supreme Court observed as under:-

"36. A prerogative remedy is not a matter of course. While exercising extraordinary power a writ court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating, "We will not listen to your application because of what you have done.". The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it."

In Vijay Kumar Kathuria v. State of Haryana,

(1983) 3 SCC 333, it was found that provisional admissions

of the petitioners had been cancelled long ago, to their

knowledge and they had obtained a favourable order by

making a false representation. Deprecating the conduct of

the petitioners as also their counsel, the Supreme Court,

inter alia, observed as under:-

"1..... But for the misrepresentation this Court would never have passed the said order.

By reason of such conduct they have disentitled themselves from getting any relief or assistance from this Court and the special leave petitions are liable to be dismissed."

In Dalip Singh v. State of Uttar Pradesh and

Others, (2010) 2 SCC 114, it was found that the appellant

while approaching the High Court had made misleading

statement in para 3 of the writ petition by giving an

impression that the tenure holder did not know of the

proceedings initiated by the prescribed authority and by

doing to, he succeeded in persuading the High Court to pass

an interim order. Finding that it was an effort to mislead

the authorities, which had transmitted to the Court,

Supreme Court was of the view that the petitioners belong

to category of person, who had succeeded in polluting the

course of justice and, therefore, there was no justification

for interfering with the order, which had been passed

against them.

13. Extension of time for filing written statement,

particularly beyond the period of 90 being absolute

discretion of the Court, to be exercised only in exceptional

and unavoidable circumstances, the Court must refuse to

exercise discretion in favour of a person, who does not come

to the Court with clean hands and goes to the extent of on

making a false averment, denying receipt of summon

personally by him. No Court would be justified in exercising

a discretion in favour of a person who has openly perjured

himself, instead of coming clean, disclosing full facts and

then seeking exercise of discretion in his favour. For this

reason alone, the defendant is not entitled to extension of

time for filing the written statement, beyond the period of 90

days.

14. For the reasons given in the preceding paragraphs,

IA Nos 16386/2010 & 1679/2011 are dismissed. In the

facts and circumstances of the case, the right of the

defendant to file written statement is closed and his defence

is struck off. I, however, do not deem it appropriate to

pronounce judgment under Order VIII Rule 10 of CPC. The

plaintiff, therefore, is directed to file affidavit by way of

evidence, in order to satisfy the Court about the merits of its

case. The affidavit be filed within four weeks from today.

The plaintiff are directed to appear before the Joint

Registrar on 14th March, 2011 for exhibiting the documents

of plaintiff. The matter be listed before the Court on 17 th

March, 2011 for arguments.

(V.K. JAIN) JUDGE

FEBRUARY 07, 2011/bg