IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 OP(C).No. 1960 of 2011(O) ------------------------- OS.181/2008 of SUB COURT, SULTHAN BATHERY .................... PETITIONERS --------------------- 1. KOMMATT PARVATHY,W/O.PAITHAL,THAZHATHUR. P.O,CHEERAL AMSOM,DESOM,BATHERY TALUK. 2. KOMMATT KUNHILAKSHMI,W/O.KUNHAN, THAZHATHUR.P.O,CHEERAL AMSOM,DESOM, BATHERY TALUK. BY ADV. SRI.P.RAMAKRISHNAN SRI.C.ANIL KUMAR RESPONDENT(S): --------------- 1. PUTHIYEDATH ABU,S/O.KUNHAMMAD, KUPPADI AMSOM,DESOM,BATHERY TALUK-673592. 2. A.I.BABY,S/O.ISAAC,ERATTAPEEDIKAYIL HOUSE,CHEERAL AMSOM,DESOM,BATHERY TALUK-673592. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 1960 of 2011(O) PETITIONERS EXTS: EXT.P1: COPY OF IA NO.691/2011 FILED IN OS NO.181/2008 , FOR CONDONING DELAY IN FILING WRITTEN STATEMENT. EXT.P2: COPY OF ORDER DTD.8.6.2011 IN I.A.NO.691/2011 IN OS NO.181/2008 EXT.P3: COPY OF IA NO.692/2011 IN OS NO.181/2008 FOR REMOVING THE CASE FROM THE LIST FILED BY THE PETITIONERS. EXT.P4: COPY OF ORDER DTD.8.6.2011 IN IA NO.692/2011 IN OS NO.181/2008 RESPONDENTS EXTS: NIL /TRUE COPY/ P.A.TO JUDGE K.T.SANKARAN, J. ------------------------------ O.P(C)No.1960 OF 2011 ------------------------------ Dated this the 21st day of June, 2011 JUDGMENT The petitioners are supplementary defendants 2 and 3 in O.S.No.181 of 2008 on the file of the Court of the Subordinate Judge of Sulthanbathery. 2. The suit was filed for specific performance of an agreement for sale executed by the first defendant in favour of the plaintiff. Advance was paid to the first defendant. The plaintiff contended that he was ready and willing to perform his part of the contract. But the first defendant failed to register the sale deed in his favour. It is stated that the suit was filed on 3.10.2008. 3. The first defendant contended that there was a mediation and he agreed to return the advance amount to the O.P(C)No.1960 OF 2011 2 plaintiff after selling the plaint schedule property to strangers, which was agreed upon by the plaintiff. Accordingly, the first defendant sold the property to defendants 2 and 3 on 6.9.2008 as per registered sale deed. On the plea made by the first defendant that the property was transferred to defendants 2 and 3, the latter were impleaded as additional defendants 2 and 3. 4. Additional defendants 2 and 3 though entered appearance and engaged a counsel, they did not file any written statement. The plaintiff filed an application to examine him emergently stating that he is a chronic heart patient and that he is undergoing treatment at Velloor hospital. It is also stated that he is practically living on supplement oxygen from oxygen cylinder and that the trial of the suit should not be postponed. Accordingly, the suit was taken up for trial. PW1 was examined and he was cross-examined by the first defendant. At that juncture, the petitioners herein, who are defendants 2 and 3, filed a written statement and filed an application to accept the same after condoning the delay. The court below dismissed the application for accepting the written statement, as per the order dated 8th June, 2011. The court below held that after O.P(C)No.1960 OF 2011 3 amendment of the Code of Civil Procedure by the Amendment Act 22 of 2002, a written statement filed after 90 days from the date of service of summons cannot be accepted. 5. The learned counsel for the petitioners relied on the decision of the Supreme Court in Sambhaji and others v.Gangabai and others [(2008)17 SCC 117] wherein it was held thus: “9. Order 8 Rule 1 after the amendment casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Further, the nature of the provision contained in Order 8 Rule 1 is procedural. It is not a part of the substantive law. The substituted Order 8 Rule 1 intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the plaintiffs and the petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried. 10.All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of O.P(C)No.1960 OF 2011 4 participating in the process of justice dispensation. Unless compelled by express and specific language of the statue, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.” 6. Sri.P.B.Krishnan, the learned counsel appearing for the first respondent/plaintiff submitted that the petitioners were not vigilant in prosecuting their case. They did not file the written statement after they were impleaded in the suit. It is submitted that there is no reason why the written statement should be accepted after examination of PW1. The counsel also pointed out that the case stands posted to 7.7.2011 for examination of PW2. 7. The suit is for specific performance of an agreement for sale. The first defendant is the owner of the property. He sold the property to defendants 2 and 3. According to the first defendant, sale of the property was made to defendants 2 and 3 with the permission of the plaintiff. The sale took place before filing of the suit. Therefore, a contention may be available to defendants 2 and 3 that they are bonafide transferees. If they succeed in proving so, the Court is likely to exercise the discretion not to decree for specific O.P(C)No.1960 OF 2011 5 performance. That is a matter to be considered by the court on the merits, based on materials and evidence available in the case. Due to non acceptance of the written statement of defendants 2 and 3, it may not be possible for the court to arrive at a conclusion as to whether defendants 2 and 3 are bonafide transferees. It is to be noted that the suit was not listed in the normal course, but it was taken up for trial on the application made by the plaintiff stating that he may be examined emergently. In these circumstances, a liberal approach can be taken in favour of the petitioners. For the aforesaid reasons, I set aside the order dated 8th June, 2011 in I.A.No.691 of 2011. The written statement filed by defendants 2 and 3 shall be accepted. However, the trial shall proceed as scheduled. No adjournment shall be granted at the instance of defendants 2 and 3. The court shall permit the petitioners (defendants 2 and 3) to cross-examine PW1, on a date convenient to him, at his residence and that too, at the expense of the petitioners. All the necessary expenses for cross-examination of PW1 by defendants 2 and 3 shall be met by them. At the instance of defendants 2 and 3, examination of PW1 should not be adjourned. O.P(C)No.1960 OF 2011 6 The written statement will be accepted, not unconditionally, but on condition that the petitioners shall pay a sum of `3,000/-(Rupees three thousand only) as costs to the plaintiff. Only on payment of such costs, the written statement will be accepted. If the petitioners fail to pay or deposit the costs before 7.7.2011, the order passed by the court below shall be in force and the Original Petition shall be treated as dismissed. The Original Petition is disposed of as above. K.T.SANKARAN, JUDGE. cms