Priyanka And Another vs Madan Pal And Others
2023 Latest Caselaw 18892 P&H

                                                         Neutral Citation No:=2023:PHHC:139701




                                                          2023:PHHC:139701

         IN THE HIGH COURT OF PUNJAB & HARYANA
                     AT CHANDIGARH

126
                                              CR-5849-2023
                                              Date of Decision : 02.11.2023

Priyanka and another                                             .....Petitioners

                                     Versus

Madan Pal and others                                            .....Respondents

CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR

Present :     Mr. D.S. Nigha, Advocate for the petitioners.

                                    ****

NAMIT KUMAR, J. (ORAL)

1. Challenge in the present revision petition is to the order

dated 21.08.2023 passed by learned Additional Civil Judge (Junior

Division), Chandigarh in CS No.670 of 2022 titled as 'Madan Pal and

others Vs. Hari Ram etc.', whereby defence of the

petitioners/defendants No.12 and 13 has been struck off for non-filing

of written statement despite availing several opportunities within the

prescribed period of 90 days.

2. Learned counsel for the petitioners contends that the

petitioners/defendants No.12 and 13 have appeared before the Trial

Court on 19.04.2023 and sought legal help to defend themselves

through Legal Aid Committee and subsequently, they were provided

legal aid counsel who appeared and filed power of attorney on

19.05.2023 and the case was adjourned to 10.07.2023 for filing written

statement on behalf of the petitioners. On 10.07.2023 due to strike of

Bar Association Chandigarh, the case was adjourned to 21.08.2023 and

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on 21.08.2023 the impugned order has been passed. He submits that

non-filing of the written statement within the stipulated period is neither

intentional nor deliberate. He further submits that the written statement

on behalf of the petitioners is ready and shall be filed on the next date of

hearing fixed before the Trial Court.

3. I have heard learned counsel for the petitioners and perused

the record.

4. The question is as to whether under the facts and

circumstances of the case, the petitioner deserves to be granted any

further opportunity for filing of written statement while setting aside the

order passed by the Court below whereby defence of the petitioner was

struck-off on account of non-filing of written statement.

5. Comprehensive amendments were made in CPC in the year

2002 in Order 8, Rule 1 CPC. The relevant provision is reproduced

below:-

"Written Statement:- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons."

6. Aforesaid provision provides that the defendant shall,

within thirty days from the date of service of summons on him, present

a written statement of his defence, provided that where the defendant

fails to file written statement within the said period of thirty days, he

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shall be allowed to file the same within such further time, as may be

specified by the court, for reasons to be recorded in writing, but which

shall not be later than ninety days from the date of service of summons.

7. The issue as to whether the period so provided under Order

8, Rule 1 CPC for filing the written statement is mandatory or directory,

came up for consideration before Hon'ble the Supreme Court in Kailash

v. Nanhku and others 2005 (2) RCR (Civil) 379, wherein it was opined

that the purpose of amendment is to expedite and not to scuttle the

hearing. This does not impose an embargo on the power of the court to

extend the time further, as no penal consequences as such have been

provided, the provisions being in the domain of the procedural law are

not mandatory. However, it was further opined that keeping in view the

need for expeditious trial of the civil cases, ordinarily the time schedule

should be followed as a rule and departure therefrom would be by way

of exception. The extension of time should not be granted as a matter of

routine and merely for asking especially when the time is beyond the

period of 90 days. In case any extension is to be granted, the same could

be for good reasons to be recorded in writing may be in brief. Relevant

paras from the aforesaid judgment are extracted below:-

"45(i) to (iii) x x x x

(iv) The purpose of providing the time schedule for filing the written statement under Order 8, Rule 1 of 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 of the CPC is couched in negative form, it does not specify any penal consequences flowing from the noncompliance. The provision being in the domain of the Procedural Law,

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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 of the CPC is not completely taken away.

(v) Though Order 8, Rule 1 of the CPC is a part of procedural Law and hence directory, keeping in view the need for expeditious trial of civil cases which persuaded the 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 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 was needed to be given for the 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."

8. The issue regarding filing of belated written statement

came up for consideration before Hon'ble the Supreme Court in view of

objection raised by the plaintiff therein, in M. Srinivasa Prasad and

others v. The Comptroller & Auditor General of India and others

2007 (4) SCT 380, wherein Hon'ble the Supreme Court while setting

aside the order passed by the trial court as well as the High Court,

remitted the matter back for consideration afresh, as there were no

reasons forthcoming for allowing the written statement to be filed after

expiry of period of 90 days. Relevant para thereof is extracted below:-

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"7. Since neither the trial Court nor the High Court have indicated any reason to justify the acceptance of the written statement after the expiry of time fixed, we set aside the orders of the trial Court and that of the High Court. The matter is remitted to the trial Court to consider the matter afresh in the light of what has been stated in Kailash's case(supra). The appeal is allowed to the aforesaid extent with no order as to costs."

9. Subsequently the same issue again came up for

consideration before Hon'ble the Supreme Court in R.N. Jadi v.

Subhashchandra 2007 (3) RCR (Civil) 588, wherein it was opined that

the grant of extension of time beyond 30 days is not automatic. The

power of the court has to be exercised with caution and for adequate

reasons to be recorded and extension of time beyond 90 days of service

of summons must be granted only based on a clear satisfaction of the

justification for granting such extension. The period prescribed under

Order 8, Rule 1 CPC should generally be adhered to and the extension

should be in exceptional cases. The relevant paras thereof are extracted

below:-

"14. It is true that procedure is the handmaid of justice. The court must always be anxious to do justice and to prevent victories by way of technical knock-outs. But how far that concept can be stretched in the context of the amendments brought to the Code and in the light of the mischief that was sought to be averted is a question that has to be seriously considered. I am conscious that I was a party to the decision in Kailash v. Nankhu and others, 2005 (4) SCC 480 which held that the provision was directory and not mandatory. But there could be situations where even a procedural provision could be construed as mandatory, no doubt retaining a power in the court, in an appropriate case, to exercise a jurisdiction to take out the rigour of that provision or to mitigate genuine hardship. It was in that context that in Kailash v. Nankhu and others

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(supra) it was stated that the extension of time beyond 90 days was not automatic and that the court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from the time limit fixed by the Code and the power inhering in the court in terms of Section 148 of the Code. Kailash is no authority for receiving written statements, after the expiry of the period permitted by law, in a routine manner.

15. A dispensation that makes Order 8, Rule 1 directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasise that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order 8 Rule 1 must be adhered to and that only in rare and exceptional cases, the breach thereof will be condoned. Such an approach by courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in courts. The lament of Lord Denning in Allen v. Sir Alfred Mc Alpine & Sons, (1968) 1 All ER 543 that law's delays have been intolerable and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times?"

10. Similar view was expressed by Hon'ble the Supreme Court

in Mohammed Yusuf v. Faij Mohammed and others 2009 (1) RCR

(Civil) 633 and in Sandeep Thapar v. SME Technologies Private

Limited 2014 (1) RCR (Civil) 729.

11. Provisions contained in Order VIII Rule 1 CPC though

ought to be adhered to but learned Court below could have still

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permitted petitioner to file written statement subject to certain penalty as

a deterrent. Otherwise also, provisions contained in Order 8 Rule 1 have

been held to be directory in nature by the Hon'ble Supreme Court. The

Court should not, therefore, be too harsh to disallow filing of written

statement.

12. Keeping in view the facts and circumstances of the case

and by considering the position of law as discussed above, the instant

petition is allowed and the impugned order dated 21.08.2023 is

modified accordingly as the same would indeed cause prejudice to

petitioners/defendants No.12 and 13 and the petitioners are granted one

more opportunity to file written statement/reply on the next date of

hearing before the trial Court.

13. Considering the nature of order being passed, facts and

circumstances of the case, issuance of notice to respondent seems

unnecessary and is, therefore, dispensed with. Still if dissatisfied the

respondent may move this Court for recalling of this order.

02.11.2023                                           (NAMIT KUMAR)
Kothiyal                                                 JUDGE
             Whether Speaking/reasoned               Yes/No
             Whether Reportable                      Yes/No




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