IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1821 of 2006 CHULHAN YADAV, S/o Late Chhatu Yadav, R/o Mohalla Moti Tola, Ward No. 22, P.S. Arrah Town, P.O. Kutchhari, Arrah, Distt. Bhojpur ………………………………………………………. Plaintiff …. Petitioner Versus 1. RAM BHAJAN YADAV, S/o Sita Ram Yadav, R/o Village Thorhi Parepur, P.S. Dumraon, P.O. Dumraon, Distt. Buxar at present resident of Mohalla Moti Tola, Ward No. 22, P.S. Arrah Town, P.O. Kutchhari Arrah, Distt. Bhojpur …Defendant-Opposite Party 1st Set, 2. Vijay Yadav, 3. Ajay Yadav, 4. Sanjay Yadav, 5. Ashok Yadav, 6. Birbahadur Yadav, All are sons of Late Chhatu Yadav, 7. Most. Sugiya Devi, W/o Late Chhatu Yadav, 8. Hirajhari Devi, W/o Kishun Bal Rai, 9. Hiramani Devi, W/o Sadama Rai, 10. Asturan Devi, W/o Asturan Devi, Sl. No. 8 to 10 are the daughters of Late Chhatu Yadav, 11. Maua Yadav, 12. Dadan Yadav, and 13. Madan Yadav, All are sons of Manager Yadav, All are residents of Mohalla Moti Tola, Ward No. 22, P.S. Arrah Town, P.O. Kutchhari Arrah, Distt. Bhojpur ……… Plaintiff … Opposite party IInd Set. ----------- For the Petitioner:- Mr. Radha Mohan Pandey and Mr. Sandip Singh, Advocates. For the Opposite Parties:- Mr. Ranjana Kumar Singh, Advocate. ----------- 7. 28.10.2009. This Civil Revision is directed against the order dated 25.07.2006 passed by the Munsif 2nd, Arrah in Title Suit No. 138/96 whereby he had accepted the written statement filed by the defendant – opposite party no. 1. On an earlier occasion, this Court had issued notice only to the defendant – opposite party no. 1, whose written statement had been accepted by the trial 2 court, in response whereof opposite party no. 1 had appeared by filing Vakalatnama. The appearing parties have jointly submitted that the aforesaid controversy is between the plaintiff, and this defendant and other opposite parties are not necessary parties to be heard in this case. At the instance of the parties, this Civil Revision has been heard and is being disposed of at this stage. Learned counsel for the petitioner submitted that the defendant – opposite party appeared in the suit in 1996 itself but he had filed the written statement on 22.06.2006, i.e. after about ten years. It is submitted that he has not filed any petition explaining the delay before the court below, however, on the basis of oral submission only, the court below had allowed his prayer and illegally accepted the written statement. Learned counsel drew attention of this Court towards the amended provision of Order VIII Rule 1 of the Code of Civil Procedure (hereinafter referred to as `the Code’) to demonstrate that the defendant was obliged to file a written statement within 30 days from the date of service 3 of summons upon him, failing which he may have been allowed by the court concerned to file the same on any specified date beyond that 30 days but not later than 90 days from the date of summons as per the provisions under Order VIII Rule 1 of the Code. In support of his submission learned counsel for the petitioner has placed reliance upon a decision of the Apex Court in Aditya Hotels (P) Ltd. Vs. Bombay Swadeshi Stores Ltd. & Ors., [(2007) 14 SCC 431]. It is submitted that the Apex Court while remitting back the matter to the trial court for fresh consideration in the aforesaid case had held that no reasons could have been indicated to justify the acceptance of written statement after expiry of the time fixed. Learned counsel for the defendant – opposite party no. 1 submitted that, at the first instance, Title Suit No. 110 of 1996 was filed by this opposite party for removal of encroachment by the petitioner. It is stated that 2 Kathhas of lands were purchased by the opposite party, whereas 8 Kathhas were purchased by the petitioner from the same vendor, which were adjacent to each other. It is submitted that the plaintiff started 4 claiming passage out of the land of opposite party compelling him to file Title Suit No. 110/1996. Thereafter, Title Suit No. 138/1996 was filed by the plaintiff – petitioner for declaration of title and possession and removal of encroachment from the said lands. Both suits were directed to be heard together and are being heard analogous by the concerned court. It is submitted that though the petitioner was plaintiff in the first case, i.e. Title Suit No. 110/1996, but due to clubbing of the cases and under certain bona fide confusion and mistake, the written statement could not be filed within the stipulated time and has been filed after much delay. However, the concerned court had considered the bona fide mistake on the part of the petitioner and in the interest of justice has accepted the written statement, as such both the suits are being heard together and in the interest of justice, written statement in the second suit, i.e. Title Suit No. 138/1996 was also required for determination of lis between the parties. Learned counsel has placed reliance upon a decision of the Apex Court in Kailash Vs. Nanhku & Ors., [(2005) 4 SCC 480]. It has been submitted that the Apex Court 5 has held the provisions contained in Order VIII Rule 1 of the Code to be a part of procedural law and, hence, directory and not mandatory. Learned counsel, further, has placed reliance upon a decision of this Court in Smt. Sunita Devi & Ors. Vs. Abdhesh Kumar Sinha @ Kamleshwari Pd. Sinha & Ors., [2005 (2) PLJR 482]. In the aforesaid case, the Court while allowing the Civil Revision by setting aside the order passed by the trial court rejecting the petition of the defendants for accepting their written statement filed beyond the statutory period for fresh determination had held that one Rule or one Section cannot be the guiding factor for arriving at the intendment of the legislature. The provision of Rule 1 of Order VIII of the Code has to be considered along with Rules 9 & 10 thereof. The Court has come to the conclusion that there can be various compelling circumstances and myriad situations in which a defendant can be completely helpless in filing written statement within ninety days from receiving summons. Where the cause of justice is at stake, the powers of the court are very wide and cannot be limited and hence when the court feels that there were genuine and 6 exceptional circumstances and the cause of justice would suffer by refusing the written statement, it definitely can accept the pleading of the defendant beyond the period of ninety days. I have heard the parties and perused the records of the case. The ambit and scope of the provisions under Order VIII Rule 1 of the Code has been considered in detail by the Apex Court in Kailash Vs. Nanhku & Ors. (supra). The Apex Court has come to the conclusion that the provisions aforesaid are directory in character and not mandatory. Though they cast an obligation on the defendant to file a written statement within the time prescribed therein, the provisions do not deal with nor specifically take away the power of the Court to take the written statement on record though filed beyond the time as provided therein. However, this has also been held that though the provisions are held to be directory but it may not be understood as nullifying the entire force and impact, the entire life and vigour, of the provision in its amended form, meaning thereby that ordinarily the time schedule contained in the provisions is to be followed as 7 a rule and departure therefrom would be in exceptional cases only. The Apex Court has also noticed the provisions under Rule 9 of Order VIII of the Code for coming to the conclusion that the Court’s power of accepting the written statement in the interest of justice are not fettered by the amending provisions contained under Order VIII Rule 1 of the Code. Relying upon a number of decisions and Kailash Vs. Nanhku & Ors. (supra), similar view has been taken by this Court in Smt. Sunita Devi & Ors. Vs. Abdhesh Kumar Sinha @ Kamleshwari Pd. Sinha & Ors. (supra). In Aditya Hotels (P) Ltd. Vs. Bombay Swadeshi Stores Ltd. & Ors. (supra), the Supreme Court had found that neither the trial court nor the High Court have indicated any reason to justify the acceptance of the written statement after the expiry of the time fixed, thus, the orders accepting the written statement by the trial court and the order of the High Court were set aside and the matter was remitted back to the trial court to consider the matter afresh in the light of the decision of the Apex Court rendered in Kailash Vs. Nanhku & Ors. (supra). 8 Admitted facts of the case are that the defendants – opposite parties filed Title Suit No. 110/1996 for removal of encroachment as from the same vendor the defendant – opposite party no. 1 as well as the plaintiff – petitioner had purchased the land measuring areas of 2 Kathhas and 8 Kathhas respectively which were adjacent to each other. It has been alleged in the above suit by the opposite party (plaintiff therein) that the plaintiff – petitioner (defendant therein) was forcibly claiming passage upon the land of the opposite party. The defendant therein (plaintiffs – petitioners in the present case) had appeared. Subsequently, this plaintiff – petitioner also filed Title Suit No. 138/1996 for declaration of his right, title and possession as well as removal of encroachment from the aforesaid lands. It is also stated that both the suits are being heard analogous by the concerned court. However, the defendant – opposite party did not file written statement within the statutory period as prescribed in Order VIII Rule 1 of the Code, rather he had filed the same on 22.06.2006, i.e. after much delay. It would be pertinent to mention here that the 9 suit was of the period 1996 and at that point of time, the amended provisions were not in force as they had come into force from July, 2002. Therefore, at that point of time there was no such statutory period for filing of a written statement as has been described in the amended Order VIII Rule 1 of the Code. Be that as it may, even after coming into force of the amended provision, the defendant – opposite party had not filed the written statement immediately or within the statutory period prescribed therein commencing from the date of enforcement of the amended Act. However, it has been stated before the court below that since both the suits were clubbed together and the plaintiff has taken his stand in the plaint of Title Suit No. 110/1996, thus, under some confusion and bona fide mistake the written statement could not be filed as there could be no other reason for the said omission as the stand of the opposite party had already been taken in the plaint of the earlier Title Suit No. 110/1996. Therefore, it had been submitted that the omission could not be deliberate or mala fide for the reason that no benefit could have been derived 10 therefrom. The object behind the amendment concerned, as had been held in Kailash Vs. Nanhku & Ors. (supra), is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and 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. The court below had considered the rival submissions of the parties and come to the conclusion that the omission / mistake on the part of the defendant was bona fide and under certain confusion he could not file it within the statutory period and since both the suits aforesaid are being heard together, the concerned court found that acceptance of the written statement would be necessary for the determination of lis between the parties and, thus, in the interest of justice had accepted the written statement. That apart, despite the fact that the written statement could not be filed for about ten years, the plaintiff – petitioner had not made any prayer for pronouncement of judgment in the suit concerned in 11 terms of Order VIII Rule 10 of the Code. In view of the aforesaid discussions, I do not find any jurisdictional error in the impugned order dated 25.07.2006. As a result, this Civil Revision is dismissed. dk ( Dr. Ravi Ranjan, J. )