Gauhati High Court
Nirupam Acharjee @ Nitai Acharjee vs Smti. Bimala Acharjee And 10 Ors on 14 September, 2021
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GAHC010013922015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/173/2015
NIRUPAM ACHARJEE @ NITAI ACHARJEE
S/O- LT. NISHI KANTA ACHARJEE, R/O- SHYAMAPRASAD PALLY,
BADARPUR TOWN, P.O. and P.S.- BADARPUR, DIST.- KARIMGANJ, ASSAM.
VERSUS
SMTI. BIMALA ACHARJEE and 10 ORS
W/O- LT. SHIBU KUMAR ACHARJEE.
2:DAYAL KUMAR ACHARJEE
S/O- LT. SHIBU KUMAR ACHARJEE
BOTH ARE R/O- SARISHA
SILCHAR ROAD
KARIMGANJ TOWN
P.O.- SILCHAR ROAD
P.S. and DIST.- KARIMGANJ
ASSAM.
3:SMTI. RINA ACHARJEE ALIAS SMTI. ALO ACHARJEE
W/O- LT. SHANKAR ACHARJEE.
4:SHIBAM ACHARJEE
S/O- LT. SHANKAR ACHARJEE.
5:SWITI ACHARJEE
D/O- LT. SHANKAR ACHARJEE
ALL ARE R/O- RAILWAY SCHOOL
NETAJI PALLI
BADARPUR
P.O. and P.S.- BADARPUR
DIST.- KARIMGANJ
ASSAM.
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6:DOLY ACHARJEE
D/O- LT. NISHI KANTA ACHARJEE
R/O- RAILWAY COLONY
BADARPUR
P.O. and P.S.- BADARPUR
DIST.- KARIMGANJ
ASSAM.
7:TULSI ACHARJEE
S/O- LT. SASHADAR ACHARJEE.
9:SHANTA ACHARJEE
D/O- LT. SASHADAR ACHARJEE
ALL ARE R/O VILL.- KALAIRBOND
BADARPURGHAT
P.O. and P.S.- BADARPUR
DIST.- KARIMGANJ
ASSAM.
10:STATE OF ASSAM
REP. BY THE DY. COMMISSIONER
KARIMGANJ.
11:THE DY. COMMISSIONER/COLLECTOR
KARIMGANJ
Advocate for the Petitioner : MS.M DUTTA
Advocate for the Respondent : MS.S DASGUPTAR-1 and 2
BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
ORDER
14.09.2021
Heard Mr. P.K. Roy, learned counsel appearing for the petitioner as well as Mr.
N. Dhar, learned counsel representing the respondents.
This is an application under Article 227 of the Constitution of India challenging
the order dated 08.04.2015 passed by the Munsiff No. 2, Karimganj in Misc. Case No.
165/2014 arising out of Title Suit No. 287/2014.
Shorn of unnecessary details, the factual matrix giving rise to this revision
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petition is that the Court below refused to accept the written statement filed by the
petitioner after expiry of 90 (ninety) days.
In the impugned order dated 08.04.2015, the learned Court below agreed that a
written statement can be accepted, after expiry of 90 days as mandated by Order 8
Rule 1 of the CPC, only in rarest of rare cases.
The Court below also relied upon the judgment of the Supreme Court in Kailash v.
Nanhku, (2005) 4 SCC 480 in order to reject the prayer of the petitioner for accepting
the Written statement.
Therefore, paragraphs 30, 43, 44, and 45 of the said judgment are quoted as
under---
"30. It is also to be noted that though the power of the court under the proviso
appended to Rule 1 Order 8 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 for though they may be read in 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.
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
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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 therefrom 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 procedural law."
Procedural law is the handmaid of justice. It is a settled position of law that
whenever, the consequence of non-compliance of a particular provision is not spelt
out in the statute, then the said procedural law is a directory one. The primary duty
of a Court of law is to administer justice to the people. Refusing to accept a written
statement by a Court is a dangerous proposition. If satisfactory ground explaining
delay in filing the written statement is shown, then the Court should take a liberal
approach. In such cases the Court is at liberty to impose cost also. But the Court
below took a strict approach.
Although the Court below relied upon Kailash vs. Nanhku (supra), it is apparent
on the face of the record that the Court did not read the judgment at all.
With the aforesaid observation, the petition filed by the petitioner is allowed.
The impugned order 08.04.2015 is set aside.
The petitioner shall file the written statement within 30.11.2021 and, thereafter,
the Court shall proceed to dispose of the matter in accordance with the procedure
laid down by law.
Interim order, if any, shall stand vacated.
JUDGE
Comparing Assistant
