Ganga Singh vs Satya Narayan Mahto
2023 Latest Caselaw 339 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
           CIVIL MISCELLANEOUS JURISDICTION No.1294 of 2019
     ======================================================

1. Ganga Singh, Son of Late Lakhan Mahto, Resident of Village- Malipur Pakari, P.S. and District- Sitamarhi.

2. Ram Lagan Singh @ Ram Lagan Mahto, Son of Late Lakhan Mahto, Resident of Village- Malipur Pakari, P.S. and District- Sitamarhi.

... ... Petitioner/s Versus

1. Satya Narayan Mahto, Son of Late Sudi Mahto @ Raudi Mahto, Resident of Village Malipur Pakari, P.S. and District Sitamarhi.

2. Nirmala Devi, Daughter of Late Sudi Mahto @ Raudi Mahto and Wife of Nagendra Singh, Resident of Village Balaha Rasalpur, P.S.- Bajapatti, District- Sitamarhi.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Vaidehi Raman Prasad Singh, Advocate For the Respondent/s : Mr. Sanjay Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA ORAL JUDGMENT Date : 24-01-2023

Heard learned counsel for the parties.

2. This Civil Miscellaneous application has been filed

against the order dated 04.04.2019 passed by the learned

Munsif, Sadar, Sitamarhi, in T.S. No. 11 of 2018, whereby he

has rejected the application dated 30.01.2019, filed by

petitioners-defendants for recall of the order dated 12.09.2018

(wrongly mentioned as 19.11.2018) debarring from filing their

written statement in the suit.

3. The facts of this case, in brief relevant for disposal Patna High Court C.Misc. No.1294 of 2019 dt.24-01-2023

of this application, are that the plaintiffs/respondents filed T.S.

No. 11 of 2018, in the Court of the learned Munsif, Sitamarhi

Sadar, for declaration of their title over Schedule-II land and for

recovery of their possession of the suit land. After service of

summons, the petitioners-defendants appeared in the case on

31.07.2018 and were given last opportunity on 07.09.2018 to

file their written statement but defendants failed to file their

written statement within time and due to that reason vide order

dated 12.09.2018 the Trial Court debarred the defendants from

filing of their written statement. The defendants by filing written

statement filed petition for recall of the said order stating that

for want of the required papers they would not filed their written

statement within time. The learned Trial Court observed that the

Court cannot exercise inherent power to extend the time period

provided by the law and found that no sufficient cause had been

shown for delay of about 4 months in filing written statement

and directed the plaintiffs to proceed in accordance with Order

VIII Rule 10 CPC and to give their evidence.

4. Learned counsel for the petitioners submits that the

petitioners had duly explained the reason of delay in filing

written statement within the prescribed time and they have the

good case on merit and if the written statement is not allowed to Patna High Court C.Misc. No.1294 of 2019 dt.24-01-2023

be taken on record the great prejudice would cause to the

petitioners and the interest of justice requires the adjudication of

case on merit. He further submits that the time limit to file

written statement under Order VIII Rule 1 is a directory and not

mandatory and the courts have the power to extend the time

limit beyond 90 days grace period as well in non-commercial

suits on the sufficient and valid reasons to be recorded.

5. Learned counsel for the respondents conceded that

the Court has power to extend the time period. He submits that

heavy cost may be imposed on the petitioners for not filing the

written statement within the prescribed time period and causing

delay in proceeding of the suit.

6. The catena of Judgments by the Hon'ble Supreme

Court of India, interpreting Order VIII Rule 1 of the Code of

Civil Procedure, 1908, had settled the position that the

requirement to file written statement within 30 days (extendable

to 90 days) of receipt of summons is directory and not a

mandatory requirement. Procedural law is the handmaid of

justice and not its mistress. In the decision of Kailash vs.

Nankhu (2005) 4 SCC 480 and Salem Advocates Bar

Association, T.N. vs. Union of India, (2005) 6 SCC 344, it has

been held that Order VIII Rule 1, Code of Civil Procedure, 1908 Patna High Court C.Misc. No.1294 of 2019 dt.24-01-2023

being in the domain of Procedural Law, is directory and not

mandatory. Further, in Atcom Technologies Pvt. Ltd. vs. Y.A.

Chunawala (2018) 6 SCC 639 the Hon'ble Supreme Court

reiterated its prior holding that when seeking condonation of

delay beyond 90 days period, the defendant is required to

furnish a proper and satisfactory explanation. A decision to

condone delay beyond 90 days extendable period is not to be

granted in a mechanical manner.

7. In Kailash vs. Nankhu & Ors. (2005) 4 SCC 480,

the three Judge Bench of Hon'ble Supreme Court held that the

purpose of providing the time Schedule for filing the written

statement under Order VIII, Rule 1 of the Code of Civil

Procedure, 1908 is to expedite and not to scuttle the hearing.

The process of justice may be speed up and hurried but the

fairness which is a basic element of justice cannot be permitted

to be buried. The provision spells out a disability on the

defendants; it does not impose an embargo on the power of the

Court to extend the time.

8. The Hon'ble Supreme Court in its order dated May

9th, 2022 in Bharat Kalra vs. Raj Kishan Chabra (Civil Appeal

No. 3788 of 2022) has reiterated that time limit for filing the

written statement under Order VIII, Rule 1 of the Code of Civil Patna High Court C.Misc. No.1294 of 2019 dt.24-01-2023

Procedure, 1908 is not mandatory in view of the Judgment

reported as Kailash vs. Nankhu & Ors. (supra). It is also held

that the delay in filing of written statement could very well be

compensated with costs but denying the benefit of filing of the

written statement is unreasonable.

9. Order VIII, Rule 1 of the Code of Civil Procedure

helps both the plaintiffs and defendants. The plaintiff is being

protected from intentional and unnecessary delay and on the

other hand, the defendant is provided appropriate time to

prepare and file a written statement within the prescribed period.

10. It was held in the Kailash vs. Nankhu (supra)

that ordinarily, the time Schedule prescribed by Order VIII, Rule

1 has to be honoured. The defendant should be vigilant. The

extension can be only by way of 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 of Civil Procedure was being allowed to be made because

the circumstances were exceptional, occasioned by reasons

beyond the control of the defendant and such extension as

required in the interest of justice, and grave injustice would be

occasioned if the time was not extended.

Patna High Court C.Misc. No.1294 of 2019 dt.24-01-2023

11. 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 insists on affidavit, medical

certificate or other documentary evidence. The Court may

impose costs for dual purpose (i) to deter the defendants from

seeking any extension of time just for asking and (ii) to

compensate the plaintiffs for the delay and inconvenience

caused to him.

12. In view of the facts and circumstances of the case

and considering the submissions on behalf of the parties and the

law discussed above and in the interest of justice, this Civil

Miscellaneous case is allowed. The impugned orders dated

04.04.2019 and 12.09.2018 passed by learned Munsif Sadar,

Sitamarhi in Title Suit Case No. 11 of 2018 are set aside. It is

directed that the written statement shall now be taken on record

but subject to payment of Rs. 8,000/- as agreed by the parties,

by way of costs payable by the petitioners herein to respondents/

plaintiffs within a period of four weeks from

receiving/producing the copy of this order in the Trial Court.

13. Hence, this Civil Miscellaneous application is Patna High Court C.Misc. No.1294 of 2019 dt.24-01-2023

disposed of with the aforesaid direction.

(Sunil Dutta Mishra, J)

khushbu/-

AFR/NAFR                N.A.F.R.
CAV DATE                N/A
Uploading Date          31.01.2023
Transmission Date