IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 12TH OCTOBER 2011 / 20TH ASWINA 1933 OP(C).No. 3281 of 2011(O) ------------------------------------ [I.A .NOS.6104/09,1050/11 & 1051/11 IN OS.143/2009 OF I ADDITIONAL MUNSIFF'S COURT, NEYYATTINKARA DATED 26/05/2011] .................... PETITIONER/PETITIONER/PLAINTIFF: ------------------------------------------------------ SHAJUMON.C, AGED 34, S/O.CHELLAN,ELISSA COTTAGE,PUTHENVILA, AYIRA,CHENKAL VILLAGE,ARAYOOR DESOM. BY ADVS. SRI.R.T.PRADEEP, SRI.SREEKANTH S.NAIR RESPONDENTS/COUNTER PETITIONERS/DEFENDANTS: --------------------------------------------------------------------------------- 1. MADHU,S/O.KOCHUCHERUKKAN,PADIPPURA VEEDU,NJARAKKALA PADAPARAKKALVILA, ERICHALLOOR DESOM, KARODE VILLAGE, PIN - 695 506. 2. SAILAS,S/O.APPAVU NADAR,VIRALIVILA VEEDU, VADOORKONAM,AYIRAYIL DESOM,KARODE VILLAGE- 695 506. 3. MARIYADAS,S/O.CHANKILI NADAR, KUZHINJAMVILA VEEDU, VADOORKONAM,AYIRAYIL DESOM,KARODE VILLAGE- 695 506. 4. ALBERT,S/O.JOVAN, MARY BHAVAN, VADOORKONAM,AYIRAYIL DESOM,KARODE VILLAGE 695 506 5. DEVANESAN,S/O.JOVAN, BINU BHAVAN, VADOORKONAM,AYIRAYIL DESOM, KARODE VILLAGE - 695 506. 6. BINUMON,S/O.DEVANESAN OF DO. - 695 506. 7. MABEL BABY @ SUMA,D/O.ROSAMMAL, T.R.SADANAM,PAVARATHUVILA, ARAYOOR DESOM, CHENKAL VILLAGE, 695 132. O.P.(C).NO.3281/2011-O: 8. JAPAMANI,BAIJU BHAVAN,CHOORAKUZHI, VADOORKONAM, AYIRAYIL DESOM,KARODE VILLAGE 695 506. 9. BAIJUMON,S/O.JAPAMANI OF DO. - 695 506. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.3281/2011-O: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1:COPY OF THE PLAINT DTD. 16/02/2009 IN O.S. NO.143/2009 OF ADDL. MUNSIFF -I, NEYYATTINKARA. EXT.P.2: COPY OF THE WRITTEN STATEMENT DTD. 27/10/09 OF DEFENDANTS 4 AND 7 IN O.S. 143/2009. EXT.P.3: COPY OF THE WRITTEN STATEMENT DTD. 10/11/2009 OF DEFENDANTS 1, 2,3,5,6 8 & 9 IN O.S. 143/2009. EXT.P.4: COPY OF THE I.A. NO. 6104/10 IN O.S. 143/09 DTD. 11/11/09. EXT.P.5: COPY OF THE ORDER DTD. 03/03/2010 IN I.A. 6104/10 IN O.S. NO. 143/2009 OF ADDL. M.C-I, NEYYATTINKARA. EXT.P.6: COPY OF THE B. DIARY IN O.S. 143/2009 OF ADDL. M.C.I- NEYYATTINKARA. EXT.P.7: COPY OF THE JUDGMENT IN W.P.(C).NO.17258/2010 DTD. 05/08/10. EXT.P.8: COPY OF THE APPLICATION IN I.A. 1050/11 IN O.S. 143/2009 FILED BEFORE ADDL.M.C.I- NEYYATTINKARA DTD. 21/02/2011. EXT.P.9: COPY OF THE APPLICATION IN I.A. NO. 1051/11 IN O.S. 143/2009 FILED BEFORE ADDL. M.C-I, NEYYATTINKARA DTD. 21/02/2011. EXT.P.10: COPY OF THE OBJECTION DTD. 25/03/2011 BY PETITIONER IN O.S. 143/2009. EXT.P.11: COPY OF THE VAKKALATH DTD. 24/02/2009 OF DEFENDANTS 4 & 7. EXT.P.12: COPY OF THE VAKALATH DTD. 03/03/2009 OF DEFENDANTS 1,2,3,5,6 8 & 9. EXT.P.13: COPY OF THE ORDER IN I.A. 6104/09, 1050/11 AND 1051/11 IN O.S. NO. 143/09 OF ADDL. MUNSIFF-I, NEYYATTINKARA DTD. 26/05/2011. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.3281 of 2011 --------------------------------------- Dated this 12th day of October, 2011 JUDGMENT Petitioner filed O.S.No.143 of 2009 in the Court of learned First Additional Munsiff, Neyyattinkara for a decree for prohibitory injunction against respondent trespassing into and constructing new house in plaint A schedule and for recovery of possession of plaint B schedule, obviously on the strength of title he claimed. Respondents did not file written statement on time. They filed written statement after 243 days without any request for extension of time. Petitioner thereon filed I.A.No.6104 of 2009 to reject the written statement filed by the respondents. That request was rejected by the learned Munsiff which was the subject matter of W.P(C).No.17258 of 2010. This Court by order dated August 05, 2010 set aside the order and remitted I.A.No.6104 of 2009 for fresh decision in the light of the observations made in the judgment after giving opportunity to the respondents to show reasons for filing written statement beyond the period prescribed. Pursuant to the said observation respondents 4 and 7 filed I.A.Nos.1050 of 2011 while respondents 1 to 3 and 5, 6, 8 and 9 filed I.A.No.1051 of 2011 to O.P(C).No.3281 of 2011 -: 2 :- accept their written statements. Learned Munsiff disposed of the said applications and I.A.No.6104 of 2009 by common order dated 26.05.2011 as per which I.A.No.6104 of 2009 was dismissed and I.A.Nos.1050 and 1051 of 2011 were allowed. Thus, written statements filed by respondents were accepted. The common order is under challenge in this original petition. 2. Learned counsel for petitioner contends that unless there is an order in writing extending the time up to 90days for filing writing statement, respondents could not have filed an application for extension of time beyond the said period of 90days. It is also argued by the learned counsel that circumstances pleaded by respondents do not satisfy the parameters laid down by the Apex Court in the various decision for acceptance of written statement filed beyond the prescribed time. Learned counsel has placed reliance on the decision in Kailash Vs Nanhku and Ors. ((2005)4 SCC 480) and Muhammed Yusuf Vs. Faij Mohammad and Ors. (2009 SCCR 331). Learned counsel contends that in the circumstance, learned Munsiff was not right in allowing I.A.Nos.1050 and 1051 of 2011 and rejected I.A.No.6104 of 2009. 3. Rule 1 of Order VIII of the Code of Civil Procedure O.P(C).No.3281 of 2011 -: 3 :- (for short, "the Code”) requires that the defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence. The proviso thereto says that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day as may be specified by the Court for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. Argument of learned counsel is that unless there is an order in writing, extending the time for filing written statement up to 90days as referred to in the proviso to Rule 1 of Order VIII of the Code, extension of time for further any period as requested for in I.A.Nos.1050 and 1051 of 2011 cannot be entertained. 4. It is not disputed before me that notwithstanding the outer limit provided in the proviso to Rule 1 of Order VIII of the Code, it is within the power of the Court to extent time for filing written statement even beyond the period of 90days provided ofcourse there are justifiable reasons for that. Though, learned counsel argued that there must be initial order in writing extending time up to 90days and then only an application for further extension of time could be entertained I do not find any such indication in Rule 1 of Order VIII of the Code in that way. O.P(C).No.3281 of 2011 -: 4 :- As aforesaid, it is within the power of the Court to extent the time even beyond an outer limit of 90days referred to in the proviso to Rule 1 of Order VIII of the Code. If that be so, it was within the power of the learned Munsiff to entertain I.A.Nos.1050 and 1051 of 2011. 5. Then the next question is whether on the factual situation learned Munsiff was right in receiving the written statements filed after 243 days. No doubt, the delay involved is 243 days and excluding the period of 30days referred to in Rule 1 of Order VIII of the Code, the delay could be taken as 213 days. Learned counsel has referred to me the decision in Kailash Vs Nanhku and Ors. (supra). There, in paragraph 45, it is observed that no straitjacket formula could be laid down except that the observance of time schedule contemplated by Order VIII Rule I shall be the rule and departure therefrom an exception made for satisfactory reasons only. Order VIII Rule I, though couched in mandatory form, is directory being a provision in the domain of processual law. In paragraph 46, the conclusions arrived by the Apex Court are given. In clause V of the said paragraph it is stated that though Order VIII Rule I of the Code is a part of procedural law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded O.P(C).No.3281 of 2011 -: 5 :- Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for the asking, more so when the period of 90days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also to be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be allowed if it is needed to be given for circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. In Muhammed Yusuf Vs. Faij Mohammad and Ors. (supra) in paragraph 15, it is held that a dispensation that makes Order VIII, Rule I 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 emphasis 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 90days of service of summons must be granted only based on a O.P(C).No.3281 of 2011 -: 6 :- 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 Sec.148 of the Code, has also been restricted by the legislature. 6. In the above background I shall consider whether this Court is required to interfere in exercise of its supervisory power under Art.227 of the Constitution in the discretion which the trial court has exercised in the matter of acceptance of written statements filed by the respondents. 7. I must bear in mind that this is a case where dispute regarding right, title and possession of immovable property is involved, prayer of petitioner being for a decree for prohibitory injunction against trespass and construction of a “new house” in plaint A schedule and for recovery of possession of plaint B schedule (on the strength of title). There is no forgetting the fact that respondents did not file written statement on time and as aforesaid it is filed with a delay of 243days. In the affidavit in support of I.A.No.1050 of 2011 respondents 5 and 7 who filed a joint written statement on 28.10.2009 stated that in connection with inspection of the property by the Advocate Commissioner they had entrusted the relevant records to the Commissioner, who returned the documents to them only on 20.10.2009. On O.P(C).No.3281 of 2011 -: 7 :- account of that, they could not prepare the written statement on time and hence on getting the relevant documents on 20.10.2009 they prepared the written statement and filed it on 21.10.2009. In the affidavit in support of I.A.No.1051 of 2011 respondents 1 to 3, 5, 6, 8 and 9 who filed the joint written statement on 10.09.2009 stated that respondents 6 and 9 were not available in the locality on account of their employment elsewhere to sign the written statement. Learned counsel points out that respondents 6 and 9 are employed in places nearby Neyyattinkara. It is also argued that in answer to the application for temporary injunction, respondents had produced all the relevant documents. But in the affidavit in support of I.A.No.1050 of 2011 respondents 4 and 7 stated that the record they had entrusted with the Advocate Commissioner were returned only on 20.10.2009. Regarding that explanation, learned Munsiff was satisfied and found that it is sufficient explanation for the delay in filing the written statement. So too, the explanation offered by the other respondents in the affidavit in support of I.A.No.1051 of 2011. 8. I must also bear in mind as aforesaid that this is a case where dispute regarding title and possession of immovable property is involved. The question is whether petitioner should be given an uncontested decree or respondents must be given an O.P(C).No.3281 of 2011 -: 8 :- opportunity to contest the same. The wholesome principle that has gained judicial acceptance and recognition is that the right of a party to be heard should be negatived only if there is gross negligence or gross carelessness. Unless there is something which is akin to gross negligence or gross carelessness on the part of the party concerned, the principle of law is and should be that the decision must be on merit and not on technicality. So far as it is possible, respondents must be given an opportunity to place their case before Court so that, the issue is contested by the parties and adjudicated by the court below on merit. Bearing that also in mind, I am not inclined to think that this Court exercising power under Art.227 of the Constitution should interfere with the discretionary jurisdiction exercised by the court below in receiving the written statements. In that view of the matter, I decline to interfere with the impugned order. This original petition is dismissed. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/-