M/S Swagath Foods And 2 Others vs Mr. Mahsood Ul Hassan
2021 Latest Caselaw 3523 Tel

HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

       CIVIL REVISION PETITION No.2463 of 2019

ORDER:

1. Petitioners/defendants have filed this Civil Revision

Petition Under Article 227 of the Constitution assailing the orders

in I.A.No.239 of 2019 in O.S.No.1961 of 2018 pending on the

file of VIII Junior Civil Judge, City Civil Court, Hyderabad.

2. The petitioners/defendants have filed an application in

I.A.No.239 of 2019 in the said suit under Order IX Rule 7 of the

Code of Civil Procedure, requesting the Court to set aside the

ex parte order dated 30th January 2019 stating that the original

suit is filed for recovery of Rs.2,80,000/- and that the defendants

gave vakalat to their counsel on 22.10.2018 and the matter was

coming up for filing written statement and counter. By that time,

as on 30th January 2019, the Statutory period for filing the written

statement was completed. Consequently, the petitioners/

defendants were set ex parte. In para 3 of the affidavit, the 2nd

petitioner/defendant No.2 has averred that his father was

struggling with lung disease from October 2018 and

unfortunately expired in December 2018. Accordingly, he was

involved in final rites and rituals and his wife, being a lady,

AVR, J C.R.P.No.2463 of 2019

could not contact the counsel. Thus, they could not file the

written statement within the stipulated time.

3. This application was resisted by the respondent/plaintiff

alleging that the ailments and the demise of the father of the

2nd petitioner/defendant No.2 in the absence of any certificate of

death or prescription etc., cannot be accepted and that from

October to December 2018, no such hospital record is filed, but,

the discharge summary shows that he was discharged on

15.12.2018 itself. Thus, contended that the discrepancies in the

medical record shows that the defendants were not prudent in

prosecuting the litigation.

4. The trial Court, on appreciating the contentions on both

sides, dismissed I.A.No.239 of 2019 with an observation that the

said application was filed to set aside the ex parte order dated 30th

January 2019 stating that the defendants could not furnish the

para-wise remarks to their counsel as they were held up in the

hospital, but the dates in the medical report does not match the

averments in the affidavit and the petitioners have not explained

proper reasons to prove their case. Accordingly, the petition filed

under Order IX Rule 7 of the Code of Civil Procedure was

dismissed. Aggrieved by the said findings, this Civil Revision

Petition is filed.

AVR, J C.R.P.No.2463 of 2019

5. It is a fact that the petitioners/defendants have failed to file

the written statement by 30th January 2019, consequently, they

were set ex parte. Petitioner No.2/defendant No.2 has filed his

affidavit stating that his father was hospitalized with certain

ailments and later passed away, therefore, he could not consult

the counsel and his wife, being a woman, also could not take

steps to file the written statement. It may be a fact that there are

discrepancies in the dates that are mentioned in the discharge

summary and the affidavit filed by the 2nd defendant, but that by

itself, does not disentitle the defendants to file their written

statement. Order IX Rule 7 of the Code of Civil Procedure

prescribes that where the Court has adjourned the hearing of the

suit ex parte, and the defendant, at or before such hearing,

appears and assigns good cause for his previous non-appearance,

he may, upon such terms as the Court directs as to costs or

otherwise, be heard in answer to the suit as if he had appeared on

the day fixed to his appearance.

6. The Hon'ble Supreme Court in R.N.Jadi & Brothers v.

Subhashchandra1, while considering the similar situation,

wherein, written statement was not filed within the period of 90

days, has held that the said provision does not specifically take

away the power of the Court to take the written statement on

2007 (4) JLJR 98 (SC)

AVR, J C.R.P.No.2463 of 2019

record though filed beyond the time as provided for and further

held that the nature of the provision contained in Order VIII Rule

1 is procedural one and it is not mandatory rather the same has

been substituted with intention to curb the mischief of

unscrupulous defendants adopting dilatory tactics, delaying the

disposal of cases.

7. Further, the Hon'ble Supreme Court in a recent judgment in

Shoraj Singh v. Charan Singh2, while referring to the

judgments in Kailash v. Nanhku & others3 and in Salem

Advocate Bar Association, Tamil Nadu v. Union of India4,

held that the period of 90 days for filing the written statement is

directory as far as regular suits are concerned and it is mandatory

for commercial disputes.

8. Having regard to the object of the provisions of Order IX

Rule 7 of the Code of Civil Procedure and the law laid down by

the Hon'ble Supreme Court in the above decisions, in my

considered opinion, the view taken by the trial Court is erroneous

and needs to be set aside. Further, the plaintiff has filed the suit

for recovery of Rs.2,80,000/- and the defendants, in the written

statement, have mentioned that cheque bounce cases are also

pending between the parties.

Civil Appeal No.6304 of 2021

(2005) 4 SCC 480

(2005) 6 SCC 344

AVR, J C.R.P.No.2463 of 2019

9. Having regard to the nature of the dispute, principles laid

by the Hon'ble Supreme Court in the above decisions, this Civil

Revision Petition is allowed, the impugned order passed by the

trial Court in I.A.No.239 of 2019 in O.S.No.1961 of 2018 is set

aside, allowing the defendants to file the written statement.

However, the defendants shall cooperate with the trial Court in

disposal of the matter without seeking any adjournments.

Considering the fact that it is a money suit filed in the year 2018,

the trial Court shall make every endeavor to dispose of the suit

earliest possible not later than Six months from the date of receipt

of the copy of this order. No order as to costs.

Pending miscellaneous applications, if any, shall stand closed.

_______________________________ A. VENKATESHWARA REDDY, J

Date: 17th November, 2021

ajr