IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.17628 of 2011 Anil Sinha @ Jhunjun Lal Versus Sheela Devi & Ors ---------------------------------- 07. 24.11.2011 Heard the learned counsel for the petitioner. This application has been filed by the plaintiff against the order dated 24.02.2011 passed by Munsif I, Civil Court, Patna in Title Suit No.24 of 2008 whereby the learned Court below rejected the application filed by the plaintiff praying for not to accept the written statement on the ground that it has been filed beyond 90 days after service of notice as provided under Order 8 Rule 1 C.P.C. According to the learned counsel for the petitioner, the notice was published in “Aaj” newspaper on 22nd of August, 2009 but then the defendant did not appear and he only appeared on 27th of March, 2010 and thereafter, he filed the written statement on 25th of June, 2010. In such circumstances, the provision as contained in Order 8 Rule 1 C.P.C. was not complied with. Therefore, the plaintiff filed the application before the Court below praying for not accepting the written statement but the learned Court below illegally rejected the said application. From perusal of the rejoinder of the application filed by the defendant-respondent to the application filed by the plaintiff, it appears that 2 categorically it is stated by the respondent that no notice was served either through ordinary process or registered post on the defendant and therefore, they had no knowledge about the pendency of the Title Suit No.24 of 2008. After considering the above submissions of the parties and going through the record, the learned Court below found that the defendants have filed the written statement within 90 days of their appearance. At paragraph 2 of the rejoinder application, the defendants have specifically stated that the service report was collusive and at paragraph 3, they have clearly stated that they had not read the newspaper “Aaj”. In Article 123 of the Limitation Act which prescribes period for filing an application for either setting aside the decree passed ex-parte or to rehear the appeal which was heard ex-parte, an explanation has been added wherein it is clearly stated that the substituted service under Rule 20 of Order 5 of the C.P.C. shall not be deemed to be due service. The learned counsel for the petitioner relied upon 2010(2) PLJR 635 (Shiv Bahal Yadav vs. Sripati Manjhi). From perusal of the said decision, it appears that in that case, the reason was assigned by the defendant for not filing the written statement within the period prescribed. The defendant appeared and prayed 3 for time before the Court below which was granted and then also he prayed second time for filing written statement which was granted on payment of cost but the defendant did not file the written statement within the period granted by the Court below. The fact of the present case is not like that. Here the petitioner appeared on 27th of March, 2010 and within the period granted by the Court below i.e. within 90 days, he has filed the written statement on 25th of June, 2010. In 2011(4) BBCJ 107(Mahadev Govind Gharge & Others vs. The Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka), the Apex Court considering all the previous decisions of the Apex Court regarding Order 8 Rule 1 has held that the Code of Civil Procedure is a law relating to procedure and procedural law is always intended to facilitate the process of achieving the ends of justice. The Courts would normally favour the interpretation which will achieve the said object. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. The procedural law is not to be a tyrant but a servant, not 4 an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, tho’ procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After all, courts are to do justice, not to wreck this end product on technicalities.” In view of the above settled position of law, it appears that the learned Court below has rightly exercised a jurisdiction vested in it by law and has accepted the written statement. I, therefore, find no jurisdictional error in the impugned order. Accordingly, this application under Article 227 is dismissed. Saurabh (Mungeshwar Sahoo,J.)