IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO Nos.97 of 2010 and 102 of 2010. Date of decision: 3.9.2010. 1. CMPMO No.97 of 2010. I.D. Sharma … …Petitioner Versus Manju … …Respondent 2. CMPMO No.102 of 2010. I.D. Sharma … …Petitioner Versus State of H.P. … …Respondent. Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Petitioner(s): In Person. For the Respondents: Mr.Ashwani K.Sharma, Advocate in CMPMO No.97 of 2010 and Mr.P.K. Sharma, Additional Advocate General with Ms.Shubh Mahajan, Deputy Advocate General in CMPMO No.102 of 2010. Dev Darshan Sud,J. These petitions are being taken up together for decision. The gravamen of the petitioner herein in CMPMO No.97 of 2010 is that the law relied upon by learned trial Court, while granting time to the respondents to file written statement, has since been distinguished by the Supreme Court. 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 2. The petitioner had preferred an application under Order 8 Rule 10 of the Code of Civil Procedure before the learned trial Court for pronouncement of judgment on the allegation that in Civil Suit No.603 of 2009, the written statement was not filed within the time mandated by the Code and in these circumstances judgment has to follow as a matter of right. Reply was filed by the respondents stating therein that the written statement was filed in accordance with the directions of the Court and the petitioner herein had raised no objection. Further there was no delay in filing the written statement. 4. The learned Court adjudicates that on behalf of the respondents, power of attorney in this case was filed on 15.10.2009 and file was put up before the Court on 30.10.2009, on which date defendants prayed for filing written statement. The Court then records:- “3. … … … … … … The file was put up for 7.12.09. Long date was given as this court remained closed for a considerable period of time due to special reason. Applicant filed this application on 23.11.09 and the defendant filed written statement on 1.1.10. … … …” 5. This finding of fact has not been assailed in this petition. The Court relied upon the decision in the case of Kailash vs. Nanhku, 2005(2) Civil Court Cases 532(SC), to hold that time can be granted for filing written statement beyond a period of 30 days. 3 6. The petitioner, who appeared in person, relied upon the decision of the Supreme Court in R.N. Jadi & Brothers and Others vs. Subhashchandra, (2007)6 SCC 420, which inter alia explains that in Kailash’s case supra the Supreme Court, while considering the fact that the trial Court had granted time for filing written statement beyond 90 days, had yet allowed the written statement to be taken on the record of the case. In a concurrent judgment, P.K. Balasubramanyan J., holds:- “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 vs. 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 rigor of that provision or to mitigate genuine hardship. It was in that context that in Kailash vs. Nankhu and others (supra) it was stated that the extension of time 4 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 VIII 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 emphasize 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 VIII 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 5 avoiding delays or at least in curtailing the delays in the disposal of suits filed in courts. The lament of Lord Denning in ALLEN vs. SIR ALFRED MCALPINE & SONS [(1968) 1 All E.R. 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? (p-428) 6. The Hon’ble Judge was a party in Kailash’s case supra, 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. What His Lordship then states is that extension of time beyond 90 days is not automatic and that the Courts, for reasons to be recorded, are to be satisfied that there is sufficient justification for departing from 90 days. It is then held that grant of time beyond 30 days is not automatic, but there should be adequate reasons. 7. Adverting to the facts of this case, I note that the learned Court holds that the power of attorney was filed on 15.10.2009 and thereafter the Court remained closed for a considerable period of time. In these circumstances, I hold that the Court is justified in granting the extension of time. 8. I find from the order of admission that the question of maintainability was to be considered on 6 subsequent dates. I am not going into that aspect of the matter. Petition is disposed of. CMPMO No.102 of 2010. 9. This petition is being disposed of as the same principle of law is urged and it is stated that extension of time beyond 90 days is not automatic but that have to be in compelling circumstances on the record to show that such time is in fact required to be granted. In its order passed on the application filed by the petitioner herein under Order 8 Rule 10 for pronouncement of judgment, the Court holds that the application moved by the petitioner was subsequent to the orders on 6.10.2009 when time had been granted for filing written statement which in fact was filed on 20.10.2009. In these circumstances, the application was disposed of. 10. The applicability of the principle has been considered by the Supreme Court in Kailash’s case supra. At this stage, I am not inclined to interfere in the order of the learned trial Court, more especially, when permission had been granted to the respondent to file the written statement. On the question as to whether the respondent is deliberately delaying the case, all that I need say is that if such stand is proved on the record, the petitioner herein will be entitled for exemplary costs under Section 35. In these circumstances, I do not intend to interfere 7 with the order passed by the learned trial Court. This petition is disposed of. September 3, 2010. (Dev Darshan Sud) (aks) Judge.