Abdul Qayoom Sheikh vs Abdul Hamid Sheikh And Another
2021 Latest Caselaw 184 j&K

                                                                   S. No.231
            HIGH COURT OF JAMMU AND KASHMIR
                            ATJAMMU

                                                  OW104 No. 129/2016
                                                  IA No. 1/2016

Abdul Qayoom Sheikh                                 ...Appellant/Petitioner(s)

                 Through :- Mr. Suneel Malhotra, Advocate
                            Mr. Sheikh Aleem, Advocate

                v/s
                 <




Abdul Hamid Sheikh and another
't
                                                           .....Respondent (s)

                 Through :- Mr. Piyush Gupta, Advocate


Coram:      HON'BLE MR. JUSTICE RAJNESHOSWAL, JUDGE

                                      ORDER

24.02.2021

1. The present petition has been filed by the petitioner for quashing of

order dated 05.10.2016 passed by Learned Sub-Judge Bhaderwah (herein after

referred to as trial court), whereby order dated 15.09.2015 has been recalled and the

time barred written statement filed by the respondent No. 1 has been taken on record.

2. The short controversy raised in the present petition is as to whether the

trial court can accept the written statement filed beyond the period of 90 days or not

and further as to whether trial court had no jurisdiction to recall the order dated

15.09.2015once the order had attained its finality. The present case pertains to the

un-amended Order 8 Rule 1 CPCas it existed prior to the amendment made in 2018.

3. Mr. Suneel Malhotra, learned counsel appearing for the petitioner has

vehemently argued that the trial court has exceeded its jurisdiction in accepting the

written statement filed beyond the period of limitation of 90 days as prescribed by

Order 8 Rule 1 CPC and as such, he vehemently asserts that the order impugned is

bad in the eyes of law.

4. Mr. Piyush Gupta, learned counsel appearing for the respondents on the

contrary submits that the learned trial court has every right to accept the written

statement filed beyond the period of limitation and the petitioner cannot be permitted

to get the decree without trial.

5. Heard and perused the record.

6. The written statement was filed by the respondent No. 1 on 06.05.2015

and objection was raised by the learned counsel for the petitioner that as the written

statement has been filed beyond limitation so, the same cannot be taken on record.

Further perusal of order dated 15.09.2015 reveals that the trial court has simply

recorded the statement made by the learned counsel for the plaintiff that the written

statement filed by the defendant No. 1 has been filed beyond the period of limitation

i.e. 90 days as prescribed in Order 8 Rule 1 CPC, as such, the same cannot be taken

on record and considered by the court. The trial court observed that the written

statement cannot be considered as the same has been filed after the period of

limitation.

7. The fact remains that the written statement stood already filed prior to

the order dated 15.09.2015. Thereafter, the defendant No. 1 laid a motion before the

trial court for recalling of order dated 15.09.2015 on the grounds taken in the

application. The said application was opposed by the petitioner herein but the court

by virtue of order dated 05.10.2016 has allowed the application filed by the

defendant No. 1, subject to payment of cost of Rs. 1000/-.

8. It goes without saying that the very purpose of prescribing a time limit

for filing of written statement by the legislature was to ensure that there is no delay

in the trial of the suit so that the litigation reaches to its conclusion expeditiously.

The Hon'ble Apex Court in case titled Kailash vs. Nankhu and ors. reported in

2005 (4) SCC 480 has held that the purpose of providing the time schedule for filing

the written statement under Order 8 Rule 1 CPC is to expedite and not to scuttle the

hearing. The provision spells about 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 of Order 8 CPC is couched in the 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 the time for filing the written statement

beyond the time schedule provided by Order 8 Rule 1 CPC is not completely taken

away.

9. Further, relying on the above mentioned judgment, the Hon'ble Apex

Court in case titled Rani Kusum vs. Kanchan Devi, reported in 2005 (6) SCC 705

has held that all the rules of the procedure are the hand made of justice. The language

employed by the draftsman of the procedural law may be liberal or stringent, but the

fact remains that the object of prescribing procedure is to advance the cause of

justice. In an adversarial system, no party should ordinary be denied the opportunity

of participating in the process of justice dispensation. Unless compelled by express

and specific language of the Statute, the provision of the CPC or any other

procedural enactment are not to be construed in an manner which would leave the

court helpless to meet extra ordinary situations in the ends of justice. In this case

also, the Hon'ble Apex Court has held that the period of 90 days prescribed in Order

8 Rule 1 CPC is not mandatory and for the sufficient reasons, the written statement

filed beyond the period of 90 days can be accepted by the court.

10. The perusal of the order impugned reveals that the court has recorded its

satisfaction as to the sufficiency of the reasons stated in the application for not filing

the written statement within the stipulated time and by imposing cost of Rs. 1000/-,

the written statement has been taken on record. There is no jurisdictional error

committed by the trial court while passing the order impugned as such, the present

petition is misconceived and without merit and is, accordingly, dismissed along with

connected CMs.

11. The record of the trial court be sent back.

(RAJNESH OSWAL) JUDGE JAMMU 24.02.2021 SUNIL-I

Whether the order is speaking : Yes/No Whether the order is reportable : Yes/No