IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932 CRP.NO. 176 OF 2010() --------------------------------- (I.A. NO.4314 OF 2009 & I.A. NO.580 OF 2010 OS.325/2009 OF PRL.M.C.,KOZHIKODE-II) .................... REVN. PETITIONER(S): PETITIONER/DEFENDANT ------------------------------------------------------------------------ KARUNACHALIL SAFIYA, AGED 47 YEARS, W/O.RASHID, RESIDING AT KARUVANCHALIL HOUSE, CHATHAMANGALAM, KOZHIKODE. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT(S): RESPONDENTS/PLAINTIFF ----------------------------------------------------------------- 1. E.SASEENDRAN, S/O.KUTTAN RESIDING AT EDAVALATH HOUSE, POST EDAKKAD, KOZHIKODE. 2. BEENA, W/O.SASEENDRAN, RESIDING AT EDAVALATH HOUSE, POST EDAKKAD, KOZHIKODE. ADV. SRI.C.P.MOHAMMED NIAS FOR R 1 &2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== C.R.P. No.176 of 2010 ==================================== Dated this the 11th day of June, 2010 O R D E R As on the day this revision petition was filed petitioner was concerned with the order dated 06.02.2010 on I.A. No.580 of 2010 whereby learned Principal Munsiff-II, Kozhikode refused to review the order on I.A. No.4314 of 2009 both in O.S. No.325 of 2009. Now petitioner is also concerned with the judgment and decree learned Munsiff has passed in the suit after disposal of the suit was stayed by this Court. 2. Respondents/plaintiffs filed the suit for realisation of Rs.50,000/- with interest and costs based on an agreement executed between the parties. Case was posted for written statement of petitioner on 03.07.2009. On that day a junior counsel who was representing counsel for petitioner represented in court that written statement is being filed but written statement could not be filed. Later petitioner filed written statement with I.A. No. 4314 of 2009 to condone the delay in filing the same. Learned Munsiff was not impressed by the reasons stated in the application and dismissed it observing that written C.R.P. No.176 of 2010 -: 2 :- statement is filed beyond 90 days provided under Order VIII Rule 1 of the Code of Civil Procedure (for short, the Code”). That order was sought to be reviewed by filing I.A. No.580 of 2010. That application also did not find favour and it was dismissed by the learned Munsiff as per order dated 06.02.2010. Petitioner filed the CRP on 24.3.2010 and on 25.03.2010 this Court passed an interim order of stay against further proceedings in the suit. It is stated by learned counsel that in the meantime on 29.3.2010 learned Munsiff disposed of the suit granting a decree in favour of respondents as prayed for. According to the learned counsel a copy of interim order passed by this Court along with a statement was filed in the court below on 27.03.2010 but in spite of that, learned Munsiff has proceeded to dispose of the suit on 29.03.2010. Learned counsel contends that petitioner had stated sufficient reasons for not filing the written statement within the time and for review of order on I.A. No.4314 of 2009. According to the learned counsel disposal of the suit on 29.03.2010 is not due to any default of petitioner and she may not be asked to suffer. Learned counsel for respondents contends that there is no sufficient reasons stated by petitioner in not filing written statement on 03.07.2009 as represented in C.R.P. No.176 of 2010 -: 3 :- the court below. There is also no reason stated in I.A. No.510 of 2010 for review of the order dismissing I.A. No.4314 of 2010. 3. I have gone through the copy of the affidavit in I.A. No.4314 of 2009. As stated by learned counsel and as the petitioner would state in her affidavit, on 03.07.20009 counsel was under the impression that petitioner would be available at his office to sign the written statement and accordingly a representation was made in court through junior counsel that written statement is being filed. But petitioner was laid up due to fever and unable to move about. She could not come to the office of counsel concerned to sign written statement. By the time she came to the office time for filing written statement had already expired and thereon I.A. No.4314 of 2009 was filed. In I.A.No.580 of 2010 also petitioner has stated the circumstances under which she could not file the written statement on time. Learned Munsiff was however of the view that since written statement was not filed within 90 days as provided under Order VIII Rule 1 of the Code delay could not be condoned. 4. It is not as if provisions of Order VIII Rule 1 of the Code is mandatory in the sense that no court could receive the written statement filed beyond the said period. It has been C.R.P. No.176 of 2010 -: 4 :- authoritatively laid down that though the provision is couched in a mandatory form it is directory in nature and that it is within the power of court to extend time even beyond the period of 90 days and for the said purpose it is open to the court to invoke Sec.148 or 151 of the Code. Therefore learned Munsiff was not correct in observing that since written statement was not filed within 90 days time could not be extended. So far as reason for the delay is concerned I find from the affidavit which I find no reason to disbelieve that petitioner has made out sufficient cause for not filing the written statement on 03.07.2010 or within 90 days as provided in Order VIII Rule 1 of the Code. Having regard to the circumstances stated I am inclined to allow I.A. No.580 of 2010 which has the effect of reopening the order on I.A. No.4314 of 2009 and allowing the same. 5. Now as to what happened after interim order was passed by this Court staying further proceedings in the court I called for information from the learned Munsiff. It is reported that learned Munsiff disposed of the suit on the morning of 29.03.2010 and a copy of interim order passed by this Court was received from this Court only on 05.06.2010. But learned Munsiff has stated that a copy of the interim order along with a C.R.P. No.176 of 2010 -: 5 :- statement was filed in the court below on behalf of the petitioner on 27.03.2010 but that was brought to the notice of learned Munsiff on 29.03.2010 only after the suit was disposed of. Obviously there was default on the part of staff concerned in bringing the copy of order and statement to notice of the learned Munsiff on 27.03.2010 or at any time before judgment was pronounced on 29.03.2010. Learned Munsiff shall enquire into the matter as provided. Either way petitioner cannot suffer on account of the laches or inadvertence if any on the part of the staff concerned in bringing the matter to the notice of learned Munsiff at the appropriate time. Having regard to these facts I am inclined to set aside the disposal of the case made by learned Munsiff on 29.03.2010. Resultantly, Revision Petition is allowed in the following lines: (i) Dismissal of I.A. No.580 of 2010 in O.S No.325 of 2009 is set aside and that application will stand allowed. (ii) I.A. No.4314 of 2009 will also stand allowed. C.R.P. No.176 of 2010 -: 6 :- (iii) Disposal of O.S.No.325 of 2009 after this Court passed the interim order of stay is set aside. The case will stand reopened. (iv) Learned Munsiff shall receive the written statement filed by petitioner and proceed with the trial of the suit as provided under law. Parties shall appear in the trial court on 12.07.2010. THOMAS P. JOSEPH, JUDGE. vsv