Sanjiv K. Gupta vs Sri Manepally Ramarao And Another
2021 Latest Caselaw 4169 Tel

     THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

                             C.R.P.No.651 of 2020

ORDER:

The petitioner/first defendant has filed this Civil Revision Petition

assailing the order dated 07.01.2020 in IA No.694 of 2019 in OS No.577 of

2016 passed by the learned XXI Junior Civil Judge, Hyderabad.

2. The first defendant has filed the application u/s.151 of the Civil

Procedure Code in IA No.694 of 2019 to receive his written statement,

which was filed beyond 90 days from the date of service of summons. In

his affidavit, filed in support of the petition, it is stated that the original suit

is filed for perpetual injunction with false allegations and he has filed a

detailed counter in IA No.53 of 2016 for temporary injunction and also

filed an application for rejection of the plaint in IA No.411 of 2019 under

Order-VII, Rule-11 CPC and that application was dismissed by the Court

below. After dismissal of that application, he has filed the written statement

on 25.11.2019, but the Court below has directed him to file it along with an

application seeking permission to receive the written statement and

accordingly filed. However, the Court below after elaborate discussion

about the rival contentions dismissed the application filed by the

petitioner/first defendant with an observation that he has filed Order-VII,

Rule-11 CPC petition only to drag on the proceedings and after dismissal of

that application on 05.9.2019 this application is filed beyond the period of

90 days.

3. The original suit is filed for perpetual injunction along with an

application for temporary injunction, vide IA No.33 of 2016. The petitioner

/defendant has filed an application to reject the plaint, vide IA No.411 of

2019 and that application was dismissed by the Court below on 05.11.2019.

Thereafter, he has filed his written statement. A copy of written statement is

also filed along with the present revision petition in proof of the same.

4. The learned counsel for the petitioner/defendant seeks to submit that

the provisions of Order-VIII, Rule-1 CPC are not mandatory and they are

directory. They did not take away the right of the defendant to file the

written statement. The defendant in all fairness has been contesting the suit

and filed an application for rejection of the plaint and immediately after

dismissal of that application, he has filed the present application on the

advice of the Court to receive his written statement and that the written

statement is ready. The same may be accepted, otherwise the revision

petitioner/ defendant would suffer irreparable loss and injury.

5. In support of his contention, the learned counsel for the revision

petitioner/defendant relied on the following decisions:

i) R.N. Jadi & Brothers and others v. Subhashchandra1; and

ii) Shoraj Singh v. Charan Singh2.

6. It is true that the defendant failed to file the written statement within

90 days from the date of receipt of summons, but he has filed IA No.411 of

2019 to reject the plaint and that application was dismissed on 05.11.2019.

Thereafter, he has filed the written statement. When he was submitting the

written statement, it appears he was advised by the Court unless it is

(2007) 6 SCC 420

Civil Appeal No.6304 of 2021, dt.08.10.2021 of Supreme Court

accompanied by the petition seeking permission, it cannot be accepted,

hence the present application is filed in IA No.694 of 2019.

7. The Hon'ble Supreme Court in Kailash v. Nanhku & Others3, while

dealing with the Order-VIII, Rule-1 of CPC held that they are directory if

the reasons for delayed filing of written statement with the satisfactory

explanation. Such written statement has to be accepted.

8. A 3-judge Bench of Hon'ble Supreme Court in R.N. Jadi & Brothers

(1st supra) followed the principles laid in Kailash's case (3rd supra) while

interpreting the proviso to Rule-1 Order-VIII of CPC held that Order-VIII

Rule-1 and proviso thereto of CPC is directory and they do not take away

the power of the Court to take the written statement on record though filed

beyond 90 days and it only cast an obligation on the defendant to file

written statement within the time provided for and accordingly held that the

object of Order-VIII, Rule-1 CPC is only to expedite the hearing and not to

scuttle the same. Merely, because a provision of law is couched in a

negative language implying mandatory character, the same is not without

exceptions and the Courts always have discretionary power to extend the

time beyond 90 days. However, it would be proper to encourage the

litigants to adhere to the timeline fixed in filing the written statements.

9. The Hon'ble Supreme Court in Shoraj Singh's case (2nd supra) while

relying on Kailash's case (3rd supra) and Salem Advocate Bar Association,

Tamil Nadu v. Union of India4 held that the period of 90 days for filing of

(2005) 4 SCC 480

(2005) 6 SCC 344

written statement is directory. However, this provision is mandatory in the

Commercial Courts under the Commercial Courts Act, 2015.

10. In the present case, the original suit is filed for perpetual injunction

before a regular Court and the petitioner/defendant has been agitating from

the time of receipt of the suit summons either by way of contesting IA

No.53 of 2016, which was carried to this Court, vide CRP Nos.801 and 802

of 2017 or by filing an application under Order-VII Rule 11 of CPC, vide

IA No.411 of 2019 to reject the plaint and immediately after dismissal of

the said IA, he has filed the written statement. The petitioner has got every

right to resist the suit and he has filed application under Order-VII Rule-11

CPC to reject the suit at the threshold and only after dismissal of the

application, he has rightly filed this application seeking permission to

accept the written statement filed by him beyond 90 days. There is

jurisdictional error in the order impugned. The Court below ought to have

permitted him to file written statement without looking into the

technicalities to do substantial justice. Therefore, while following the

principles laid down by the Hon'ble Supreme Court in the above said

judgments, I hold that the order impugned is irregular warrants interference

of this Court and is liable to be dismissed.

11. In the result, the Civil Revision Petition is allowed. The order

impugned dated 07.01.2020 in IA No.659 of 2019 in OS No.577 of 2016

passed by the XXI Junior Civil Judge, City Civil Courts at Hyderabad, is

hereby set aside. The said IA is allowed. The Court below is directed to

receive the written statement of the petitioner/first defendant and to proceed

in accordance with law and for expeditious disposal of the original suit.

However, there shall be no order as to costs. Miscellaneous applications, if

any pending in this revision petition shall stand closed.

______________________________ A. VENKATESHWARA REDDY, J.

Date: 07.12.2021 Isn