Jharkhand High Court
Shila Devi vs Gautam Gupta on 13 January, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
C.M.P. No. 1019 of 2023
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Shila Devi, aged about 55 years, D/o Late Ramchandra Tanti, W/o
Suresh Prasad Tanti, R/o Village - Bartalla Street, Dahiya Tola, PO -
Sahibganj, PS - Sahibganj (Town), District - Sahibganj (Jharkhand)
.... Petitioner
-- Versus --
1. Gautam Gupta, s/o Late Natho Gupta, aged about 88 years
2. Uttam Prasad Gupta, S/o Gautam Gupta, aged about 54 years
3. Sanjay Prasad Gupta, S/o Gautam Gupta, aged about 52 years
all are resident of 13, Garcha, 2nd Lane, Baligunge, PO and PS -
Baligunge, Kolkata, West Bengal
4. Madhu Devi, W/o - Rajnath Sah, aged about 44 years
5. Rajnath Sah, S/o - Late Moti Lal Sah, aged about 53 years
respondent No.4 and 5 both are R/o Gyanda Gali College Road, PO -
Sahibganj, PS - Sahibganj (Town), District - Sahibganj, Jharkhand
6. Raj Kumar Tanti, s/o Late Ramchandra Tanti, R/o Kalabari, PO and
PS - Jirmabari, District - Sahibganj .... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner :- Mr. Ashish Kr. Thakur, Advocate
For O.P. Nos. :- Mr. Parambir Singh Bajaj, Advocate
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06/13.01.2025 Heard learned counsel appearing for the petitioner and
learned counsel appearing for the opposite parties.
2. This petition has been filed under Article 227 of the
Constitution of India for quashing of the order dated 13.07.2023
passed in O.S. No.22 of 2020 by Civil Judge (Sr. Division), Sahibganj
whereby the learned Court has been pleased to accept the written
statement and also admitted the counter claim of the defendant 2nd
Party No.5 and 6.
3. Learned counsel appearing for the petitioner submits that
the Original Title Suit No.22 of 2020 was instituted for declaring the
sale deed No.127 of 2019 dated 26.07.2019 as void ab initio and
not binding against the plaintiff. He submits in the said suit the
notice was issued upon the defendants and the defendants herein
have not filed the written statement within time. With a delay of 9
days along with a limitation petition, the written statement was filed
and the learned Court has been pleased to allow the same and the
written statement has been taken on record. He submits in view of
Order 8 Rule 1, there is bar of taking written statement after 90
days. On this ground, he submits that the order may kindly be set
aside.
4. Learned counsel appearing for the opposite parties submits
that in preparation and collecting certain documents such delay has
occurred and in view of that the written statement was filed with a
delay of 9 days along with petition for condonation of delay and the
learned Court has allowed the same by condoning the delay. He
further submits that the said rule is considered in several judgments
and it has been held that the said rule is directory not mandatory
and he relied in the case of Kailash versus Nanhku and Ors.
reported in 2005 (4) SCC 480 in paragraph No.46 which has
been held as under :-
46. We sum up and briefly state our conclusion as
under:-
(i) The trial of an election petition commences from
the date of the receipt of the election petition by the court
and continues till the date of its decision. The filing of
pleadings is one stage in the trial of an election petition.
The power vesting in the High Court to adjourn the trial
from time to time (as far as practicable and without
sacrificing the expediency and interests of justice) includes
power to adjourn the hearing in an election petition,
affording opportunity to the defendant to file a written
statement. The availability of such power in the High Court
is spelled out by the provisions of the Representation of
the People Act, 1951 itself and rules made for purposes of
that Act and a resort to the provisions of CPC is not called
for.
(ii) On the language of Section 87(1) of the Act, it is
clear that the applicability of the procedure provided for
the trial of suits to the trial of election petitions is not
attracted with all its rigidity and technicality. The rules of
procedure contained in CPC apply to the trial of election
petitions under the Act with flexibility and only as
guidelines.
(iii) In case of conflict between the provisions of the
Representation of the People Act, 1951 and the rules
framed thereunder or the Rules framed by the High Court
in exercise of the power conferred by Article 225 of the
Constitution on the one hand, and the rules of procedure
contained in CPC on the other hand, the former shall
prevail over the latter.
(iv) 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 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 8
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 8 Rule 1
CPC is not completely taken away.
(v) Though Order 8 Rule 1 CPC is a part of
procedural law and hence directory, keeping in view the
need for expeditious trial of civil causes which persuaded
Parliament to enact the provision 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
therefrom 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 the
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 given
case.
On this ground he submits that there is no illegality in the order.
6. In view of the above, it transpires that only a delay of 9
days in filing of the written statement is there and due care has
been taken by way of filing a limitation petition. Considering the
reason, the learned Court has condoned the delay and allowed the
written statement. It is well settled that the Order 8 Rule 1 is
directory not mandatory as held in the case of Kailash versus
Nanhku and Ors. (supra) relied by learned counsel appearing for
the opposite parties. There is no illegality in the order, as such this
petition is dismissed
(Sanjay Kumar Dwivedi, J.)
Sangam/
