IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.R. No. 34 of 2011. Decided on: 06.12.2011. ____________________________________________________ 1. Shri Rumi Ram, son of Shri Mahajan. 2. Shri Des Raj, son of Shri Rumi Ram. 3. Shri Lekh Raj, son of Shri Rumi Ram. 4. All residents of village Khadkidyala, Post Office Sidoth, Pargna Himgiri, Tehsil Churah, District Chamba, H.P. …Petitioners/Defendants. -Versus- 1. Shri Janta Ram alias Jant, son of Shri Birbal, resident of village Khadkidyala, Post Office Sidoth, Pargna Himgiri, Tehsil Churah, District Chamba, H.P. …Respondent/plaintiff. 2. Shri Negi Ram, son of Shri Chetu Ram. 3. Shri Baiza, Son of Shri Mahajan. 4. Smt. Dhani Devi, wife of Shri Negi Ram. 5. Shri Moti Ram, son of Shri Negi Ram. 6. Smt. Premo Devi, daughter of Shri Mahajan. All residents of village Khadkidyala, Post Office Sidoth, Pargna Himgiri, Tehsil Churah, District Chamba, H.P. …Respondents/ Proforma respondents. Civil Revision Petition under Section 115 of the Code of Civil Procedure against the order dated 22.3.2011, passed by the learned Civil Judge (Senior Division), Chamba, in Civil Suit No. 119 of 2010. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. ____________________________________________________ For the petitioners : Mr. N.K. Thakur, Advocate. For respondent No. 1 : Mr. Vivek Singh Thakur, Advocate. None for proforma respondents No. 2 to 6. 1 Whether the reporters of the local papers may be allowed to see the judgment?. Yes. - 2 - ------------------------------------------------------ Rajiv Sharma, Judge (Oral): This Civil Revision Petition is directed against the order dated 22.03.2011, passed by the learned Civil Judge (Sr. Division), Chamba in Civil Suit No. 119 of 2010. 2. Material facts necessary for adjudication of this petition are that the respondent-plaintiff, Janta Ram (hereinafter referred to as “the plaintiff” for convenience sake), has filed a Civil Suit in the Court of learned Civil Judge (Senior Division), Chamba, seeking directions to the petitioners-defendants (hereinafter referred to as “the defendants” for brevity sake)to restore the flow of rain water through the Government land adjoining to the suit land comprised in Khata Khatauni No. 85/113, Khasra No. 805/268, measuring 01-02-00 bighas, situated at Mauza Kunda, Pargna Himgiri, Tehsil Churah, District Chamba, H.P. so that it may not enter into the suit land and cause damage thereon. The plaintiff has also prayed for a recovery of `5,000/- for damage being caused by the defendants to maize crop. 3. The suit was registered on 09.09.2010. Notices were issued to the defendants for 18.10.2010. The right to file the written statement of the defendants has been struck off by the trial Court on 22.03.2011. The present petition is directed against the order dated 22.03.2011. - 3 - 4. Mr. N.K. Thakur, learned counsel for the petitioners has vehemently argued that the written statement though was ready, but could not be filed since the learned Presiding Officer was on leave on 20.12.2010 and 17.02.2011. 5. Mr. Vivek Singh Thakur, learned counsel for respondent No. 1 has supported the order dated 22.03.2011. 6. I have heard the learned counsel for the parties and gone through the pleadings carefully. 7. On 18.10.2010, the defendants were permitted to file the written statement by 23.11.2010. On 23.11. 2010, further time was allowed to file the written statement up to 20.12.2010. However, the Presiding Officer was on leave on 20.12.2010 as well as on 17.02.2011. The learned Civil Judge (Sr. Divn.), Chamba has struck off the right of the defendants to file the written statement on 22.03.2011. 8. The defendants were permitted to file the written statement on two occasions, i.e., 23.11.2010 and 20.12.2010. Learned Presiding Officer was on leave on 20.12.2010 and 17.02.2011. The Court is of the considered view that this period was to be excluded in filing the written statement. If this period is excluded, the statutory period of 90 days from 18.10.2010 was available to the defendants. Learned trial court has taken hypertechnical view by not excluding the period from 23.11.2010 to 22.03.2011. - 4 - Learned trial Court has committed jurisdictional error in passing the order dated 22.03.2011. 9. Their Lordships of the Hon’ble Supreme Court in Zolba Vs. Keshao and others (2008) 11 Supreme Court Cases 769 have held that unless compelled by express and specific language of the statute, the provisions of Order 8 Rule 1 CPC or any procedural enactment should not be construed in a manner, which would leave the Court helpless to meet extraordinary situations in the ends of justice. Their Lordships have further held that it cannot also be forgotten that in an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Their Lordships have held as under: “13. Considering the facts and circumstances of the present case and the statements made in the application for condoning the delay in filing the written statement, we are not in a position to hold that the appellant was not entitled to file the written statement even after the expiry of the period mentioned in the proviso to Order 8 Rule 1 of the CPC. After reading the provisions, in particular the proviso to Order 8 Rule 1 of the CPC, we are unable to hold that the provisions under Order 8 Rule 1 are mandatory in nature. 15. Therefore, following the principles laid down in the decision, as noted hereinabove, it would be open to the court to permit the appellant to file his written statement if exceptional circumstances have been made out. It cannot also be forgotten that in an adversarial system, no party should - 5 - ordinarily be denied the opportunity of participating in the process of justice dispensation. Therefore, unless compelled by express and specific language of the statute, the provisions of Order 8 Rule 1 of CPC or any procedural enactment should not be construed in a manner, which would leave the court helpless to meet extraordinary situations in the ends of justice. 10. In Sambhaji and others Vs. Gangabai and others (2008) 17 Supreme Court Cases 117 have held that Order 8 Rule 1 after the amendment casts an obligation on the defendant to file the written 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. Their Lordships have further held that 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. Their Lordships have further held that all the rules of procedure are the handmaid of justice. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the Court - 6 - helpless to meet extraordinary situations in the ends of justice. Their Lordships have held as under: “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. 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 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 handmaids 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 participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, 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.” - 7 - 11. In the instant case also, there was sufficient cause for the defendants not to file the written statement, as explained hereinabove. 12. Accordingly, in view of the observations and discussions made hereinabove, the Civil Revision Petition is allowed. Order dated 22.03.2011 is set aside. The parties are directed to appear before the learned Civil Judge (Senior Division), Chamba on 24.12.2011. The defendants are directed to file the written statement on or before 24.12.2011. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma) Judge December 06, 2011. (bhupender) - 8 - `