Page No.# 1/5 vs Ragendra Nath Boro And Anr
2021 Latest Caselaw 3051 Gua

                                                                   Page No.# 1/5

GAHC010130142021




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : CRP(IO)/78/2021

         JAGAT KONWAR AND 3 ORS
         S/O- LT. TAMULI KONWAR, R/O- NARAKASUR NAGAR, P.S. DISPUR, DIST.-
         KAMRUP (M), ASSAM

         2: NAGEN BHUYAN
          S/O- LT. CHAYARAM BHUYAN
          R/O- NARAKASUR NAGAR
          P.S. DISPUR
          DIST.- KAMRUP (M)
         ASSAM

         3: NARAYAN KALITA
          S/O- BHABIT KALITA
          R/O- NARAKASUR NAGAR
          P.S. DISPUR
          DIST.- KAMRUP (M)
         ASSAM

         4: GAJENDRA RABHA
          S/O- LT. KAYENCHA RAM RABHA
          R/O- NARAKASUR NAGAR
          P.S. DISPUR
          DIST.- KAMRUP (M)
         ASSA

         VERSUS

         RAGENDRA NATH BORO AND ANR
         S/O- LT. KALARAM BORO, R/O- NARAKASUR NAGAR, P.S. DISPUR, DIST.-
         KAMRUP (M), ASSAM

         2:PHUPEN BORO
          S/O- RAGENDRA NATH BORO
          R/O- NARAKASUR NAGAR
                                                                                             Page No.# 2/5

              P.S. DISPUR
              DIST.- KAMRUP (M)
              ASSA

Advocate for the Petitioner     : MR. U J SAIKIA

Advocate for the Respondent : MR. K D CHETRI

BEFORE HON'BLE MR. JUSTICE DEVASHIS BARUAH

Date of Hearing : 24.11.2021

Date of Judgment : 24.11.2021

JUDGMENT AND ORDER (ORAL)

Heard Mr. U. J. Saikia, the learned counsel appearing on behalf of the petitioners and Mr. K. D. Chetri, the learned counsel appearing on behalf of the respondent Nos. 1 & 2.

This is an application filed under the provisions of Article 227 of the Constitution of India against the order dated 27.07.2021 passed by the learned Court of Civil Judge No. 1, Kamrup (M), Guwahati in Money Suit No. 17/2019 whereby the prayer for filing of Additional Written Statement was rejected.

The facts of the instant case in brief is that the plaintiffs/respondents herein had filed the Suit being Money Suit No. 17/2019 seeking decree for payment of compensation amount of Rs. 1,00,00,000/- (Rupees One Crore). The said Suit was registered as Money Suit No. 17/2019. The petitioners who are the defendants filed their written statement. Thereafter, the plaint was amended and the amended plaint was filed on 11.11.2019 and 07.01.2020 was the date of filing of the Additional Written Statement.

At this stage, it may be relevant to mention herein that the Additional Written Statement is a subsequent pleading within the meaning of the Order VIII Rule 9 of the Code of Civil Procedure.

On 07.01.2020, the petitioners sought for an adjournment on the ground that the defendant No. 3 was unwell and could not come to sign in the written statement and the engaged Advocate was also out of station. The case was thereafter fixed on 24.02.2020 for filing of the Additional Written Page No.# 3/5

Statement and on that day also, the defendant sought for time on the ground that some vital documents which are necessary were not with them for which the defendants required some time.

The Court below taking into consideration that the defendants were served a copy of the amended plaint on 11.11.2019 and the period of 90 (ninety) days having already lapsed, rejected the said petition seeking for time and fixed on 08.03.2020 for framing of issues. Thereupon, the petitioners sought for modification/recall of the order dated 24.02.2020 thereby to grant further time to file the additional written statement.

The said petition seeking for modification/recall of the order dated 24.02.2020 was rejected by the impugned order dated 27.07.2021. It is against the said order dated 27.07.2021 that the petitioner is before this Court under Article 227 of the Constitution of India.

I have heard the learned counsel for the petitioners as well as the counsel appearing on behalf of the respondents at length.

I have also perused the impugned order as well as the order dated 24.02.2020 and the petition filed by the petitioners before the Trial Court seeking time for filing of the additional Written statement.

From the records of the case, it is apparent that the Court had already granted 90 (ninety) days time for filing of the additional written statement. It is relevant herein to note that the Provision of Order VIII Rule 1 is for the purpose of filing written statement. A perusal thereof would show that the defendant shall, within 30 (thirty) days from the date of services of summons upon him, present a written statement of his defence. The proviso to Order VIII Rule 1 however, authorizes the Trial Court to permit filing of the written statement beyond the period of 30 (thirty) days for reasons to be recorded in writing but puts an outer limit of 90 (ninety) days from the date of service of summons. It is relevant however to mention herein that the Supreme Court had in its decision in the case of Kailash Vs. Nanhku reported in (2005) 4 SCC 480 though held that the provisions of Order VIII Rule 1 of the CPC to be directory but observed that the time schedule prescribed by Order VIII Rule 1 of the CPC has been honoured ordinarily but only in exceptional circumstances, occasioned by reasons beyond the control of the defendant(s) and such extension is required in the interest of justice and grave injustice would be caused, if the time is not granted, the Trial Court can grant a further opportunity. In this regard, paragraphs 42 to 44 of the said judgment are quoted herein below:-

"42. 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 Page No.# 4/5

indeed put the defendants on terms including imposition of compensatory costs and may also insist on 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.

43. 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, the defendant shall 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 asking and (ii) to compensate the plaintiff for the delay and inconvenience caused to him.

44. However, no straitjacket formula can be laid down except that the 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. We hold that Order VIII Rule 1, though couched in mandatory form, is directory being a provision in the domain of processual law."

On the other hand, Order VIII Rule 9 of the CPC is in relation to subsequent pleadings and such subsequent pleading includes an additional written statement. A perusal of the said Rule would go to show that the Court shall " fix a time of not more than thirty days for presenting the same." The legislature mandate behind the fixing of not more than 30 (thirty) days is for the reason that the defendants are already aware of the proposed amendments and when the amendments are allowed the period of 30 (thirty) days is sufficient enough to controvert the pleadings brought by way of an amendment. The outer limit of 90 (ninety) days as provided in the proviso to Order VIII is not there in the case of Order VIII Rule 9 CPC and the reasons can also be seen from a perusal of Order VI Rule 18 of the CPC, wherein, if the Court otherwise does not direct the amended pleading has to be filed within 14 days from the date of the order.

In the instant case, the Court below had already granted 90 (ninety) days time for filing of the Additional Written Statement and the petitioners having failed to file the additional written statement within the stipulated period, the Court below was justified in rejecting the said petition and consequently, the orders dated 24.02.2020 and 27.07.2021 have been rightly passed by the Court below and as such, the said orders did not call for any interference by this Court.

Accordingly, this instant petition stands dismissed.

The interim order dated 01.09.2021, whereby further proceeding in Money Suit No. 17/2019 Page No.# 5/5

was stayed is hereby vacated and the parties are directed to appear before the Court below on 15.12.2021.

With the above observation and direction, this instant petition stands dismissed and no cost.

JUDGE

Comparing Assistant