C_i"- (.cro IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH WRIT PETITION (C) N0. s~f~S I /2006 .-Dinesh Joshi, S/o- Avadhut Joshi, Aged about 66 years, R/o- Prasad and Company, Mahka, P.S. & Tehsil - Kharsia, Raigarh, Distt. Raigarh, Chliattisgarh Petitioner/Defendant No.2 VERSUS .d.^^^" fr%^'" ^Y'"\^-"" ^Qf Ae*.' Asl .<(•- .y. y. 1. Arun Kumar, Aged about 38 years, S/o-Shyamsingh, Caste - Gabel, Occupadon- Agriculture, R/o- Village - Arjuni, P.S. Shakti, Tehsil - Sakti, Distt. Janjgir-Champa, Chhattisgarh. ResDoadent/Plaintiff 2. i€Pff!ti^ '/^-./'' £'y.-.^.,K\^a !/^ APARNA Y^ 8SI ji^^j*jl ^^s^y 4. /' D. Shrimwas, S/o- Ramkrishan, P.0. Mukteshwar, P.S. Amlapuram, Distt. Eastgodawari, (Andhra Pradesh), BcesentAdress-Prasad &.Coinpajiy,Mahka, P.S. & Tehsil - Kharsia, Distt. Raigarh, Chhattisgarh. Respondent/Defendant No.l Uwasa Verma (E.D.), Executive Director, Prasad & Company Power House Conversmg, Vig, N.T.P.C., P.S. Janmipali, Distt. Korba, Chhattisgarh. Respondent/Defendant No.3 Prasad Raju, Managing Director, Prasad & Company Ltd. 6-3-87, Snehlata Green Land Road, Begam Paid, Haidarabad, (A.P.) Respondent/Defendant No. 4 Govt. ofC.G., Tto-ough - Collector, Janjgir - Champa, Distt. Janjgir -Champa, Chhattisgarh. Respondent/Defendant No.5 Respondent No. 2 to 5 are Formal party WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF APPROPRIATE WRIT IN THE NATURE OF MANDAMUS, CERTIORARI ETC. "'is-f--^-AWiydBs ;'!!';l®i'S"!^ilSf?le»l -——r' HitS^ co*urt ofChhattiwwh. Klamiur Wrtt PetitioafCI N0^781/2006 Dinesh Joshi Vs, Arun Kumar and othera Anoearance: Shri Panksg Shrivastava, coiuisd fin- the petitioiier. ORAL ORDER (12.1.2007) SUBIL KinBAR SIMHA. J (1) By way of fhis writ petition fited under Artfcle 227 of fhe Constitution of India, fhe petitioner bas chalteiiged the tegalily, propriely aad validily of fhe order datcd 20.9.2006, passed ia C.S.No. 04-B/2005 by the Additioaal District Judge- Shateti. By tbe said ordcr, the leamcd Additional District Judge has disinissed an. applicatfon filed by fhe petitioner/defendant No.2 iinder Section 151 ofthe Code of Cwfl Ptucedure alDDg with fhe written stetement and the document, which was fited for pennMsion to take the written statcment oa record alter expiratron of the statutoxy period granted under Order VIII , Rute 1 C.P.C. and furtfaer after {^smg ofan order by the tnal Court on 26.4.2006, by which, a right to fite written stateinent by this defendant was closed by the trial Coiut iinder fhe provisious ofOxder VIII, Rute 1 C.P.C. (2) Learaed counsel for the petitioner argues fhat admittedty, this petitioiier/defendant No.2 was serwed in fhc afonesaid Civfl suit No. 4-B/2005 on 17.8.2005. and hfa couasel haa fited Vakalatuama and registered address on bchalfoftlus defendantoa 24.8.2005 and he Iiad to file his writtea statemeat accordiag to the pxovisioas ofOider VIII, Riite 1 C.P.C. within a perkid of30 dssys and further within the extended peiiod of 90 days by the Court, but he couJd tiot do so, on account of certain difficulties, which were mentioiied in the appUcation fBed under Sectfon 151 C.P.C. and the trial Court without properfy adverdng to the provfajons of law and without looku^ to the difiSculties, pleaded by defendant No.2 as a cause for not filmg the written slatcineat in tiine, disnaissed tfae saui appUcatiou aad fixed the casc for plnintiff's evidence on 5.10.2006. It is stated that othcr defendants i.e. defendant Nos. 1, 3 and 4 werc already procecded ex-parte and defendant No.5 had also not fited ibe written statenaent, therefore, the niatter was fixed for evidence bythe trial Court. (3) A perusal of the impugaed oTder would show that it was a siiit for damages fited by the plaintifF, ia wfaich, the plaintifiF has claimed a sum ofRs. 1,61,292/- a^inst fhe defendauts and in. the said suit the only contesting dcfendant ie. defeadant No.2 was deiiied to fite the written statement on account of closiire of his right under Order VIII, Riite 1 C.P.C. (4( Leai-ned coimsel for ttie petittoncr argues that the order passed by fhe trial Court is not in accordance wifh thc pn»visions of Order VIII, Rule 1 C.P.C. and fhe trial Court for the reasons stated ia thc app&ation filed under Section 151 C.P.C.,woirid have granted aa opportunity to fhe petitfoiier and would faave accepted G-l.-:-.^ -:&KLNSii&<^^^^'^£BCS£^ '^ssf. •3- the written stateinent on record, which was filed by the petitk>ncr along wifh an applicatfon under Section 151 C.P.C. He refas to the aforesaid provisions and also to the decision of the Apex Court rendered in the xnatter of Kattash Vs. wMeu emA others, reported in (3005) 4 Suorenw Court Caaes 480. (5) I havc heard teamed counscl for fhe petitioner at length and have also perused thc records ofthe writ petition. (6| Oider VIII, Rute 1 C.P.C. provides for the provisions relatiiig to filing of the written statBinent. It piovides fhat fhe defendaat shall, withia 30 days fix>m the date of semce of sununons on hiin, present a written stateinent of his defence. A proviso has also bcen added to fhis rute, which says that wfaere the defendant fafls to fite tfae written stateineut wifhia the said period of 30 days, he shaB be allowcd to file the samje on such othcr date, aa may be specified by the Court for the teaaoas to be rccorded in wntiag, but it shaB not be later than 90 days fiom the date of semce of sununons. This point was considered by fhe Apex Court in the aforesaid decteion and vidc para 27, the Apex Court held that 3 thmgs are clear 6xaa. the above prowisions; (i) Firsfly, a carefEil reading of the language in whteh Order 8, Rute 1 has been draftcd, shows fhat it casts an obHgation on tfae defendant to £3e (he writtcn statem.ent wifhin 30 daya fcom. fhe date of servicc of siunmons oa him aad wifhin (he extended tuae faffing within 90 days. The provision does not deal with the powcr ofthe Court and also does not specificalfy tafce away the power of the Court to take fhc written statdacnt on rccord thoiigh fited beyond fhe tuae as provided for. (u^ Secondfy, the nature of the provisioa contain iu Order 8 Rule 1 is iwocedural, It is not a part offhe substantive law. (iii) Thirdly, the objcct behmd substi.tating Order 8 Rufc 1 in the present shape is to ciuvc tibe •.;*.-.i£i"<;5»rL;s—,teagi:£S.*fea&s-. 4-- 'ry misctiief of uascrupulous defendaats adoptmg dUatoiy tactlcs, ddaying the disposal ofcsKes much to the chagrin of tfae plaint aiid petitioiiers appioaching the Court for qufck teUef and also to the serious incoavenjence offhe Court faced with fiequeat prayers for adjoununents. Thfi object is to aipedite fbe hearimg aad awt to scutfle fhe same. The process of justice mey bc speeded up and hurried but ttie faimess wUch is a basic element ofjustice caianot be permitted to be biu-fed. (7) Para 28 of the aforesaid judgnieat says that aB tfae rules of pTocedure are fhe handinaki ofjustice. The toaguage inaplied by thc dBaflsmaa of pBocessuaI Jaw may be libeial or stringent, but the fact Bemauis that the object of prescribiag pxocedttBe is to advance the cause ofjustice. In an adversarial system, no party should ordinarity be deiifed thc opportunity of pardcipatmg in the process ofjustfce dispei^ation. Unless coinpelted by express and spccific Jangu^e of fhe statute, the piovisions of C.P.C. or any other pxocediu'al enactmcnt ought not to be coiistrucd in a maiuier which wouM teaye tfae Court helptess to meet extra ordinaiy situations in the ends ofjustice. Tlie Apex Ccnut alao quoted the observatfons made by Krishiia tyer J. in SusMl JKiBmar iStea Vs. State orBthar 1197S 1 SCC 774as foflows: "The mortaltty of justice cct the hands of kcw troubles a judge's wnsderwe cmd points an emgry interrogation at the law refonner. The prooessual kao so dormnates in oerteun systems as to awerpower substcavtwe rights and substantia.l jusfice. The humeaust rule that procedwe shauld be the handnuud, rwl the imstress, oflegaljusticse compels consideralion of vesting a residuary power m judges fo ad ex debito justitiae where the tragic sequel othenoise wauld be whoHy tnequitdtole. .... Justics fe the goaj of jurisprudence - processuctl, as much as su&sfanftve." (8) The aforesaid lan? laid down by the Apex Court aad the piovisions of Order VIII Rute l ctearty show that the mandate ^ 5~- sculptured by fhe architects offhe law nowhere curtafls flic powers of tfae Court to cscstciae jurisdiction in appi'ppriate cascs by granting reasonable tiuaae to file written stateinent evcn beyoad the period of30 days or fhe extended period of90 days as vs envisagcd ia Order VIII Rule l C.P.C. Since the nature of prowisions coatained in Order VIII Rute 1 C.P.C. is procedural, it is weB within the power of fhe Court to excrcise such jurfadfction in the appropriate matters when fhe samc is required to nieet the ends of justice. It te ahvays iaherent wifh fhe Oaurt to act and esffircise its jurisdiction &r advaaceinent of justfce keeping in mind the objcct bebind the law, subject to the expressed aad einploycd piovisions creating bar regarduig exeicise of such jurisdiction, as the giudiag factor. (9) In. fhe present case, the trial Court, without property adverting to the provfaions ofOrderVIIIRule 1 C.P.C. i.e. without eonsidering the giounds raised by fhe petitioner for not filiag fhc written statement ia tiiae, has passed the uapupicd order onJy on the ground that fhe direction contained in the pnwisions of Oider VIII Rue l C.P.C. was aot foBowcd by the petitioner aad his right to file thc wntten statement goes with ttie time luuit pBescribed by the aforesaid proivismns. (10) On fhe basis of aforesaid enuncMtion of thc Apex Coiut and in view offhe provisions oonteined in Order VIII Rufe 1 C.P.C., fhe impugned order passcd by fhe trial Court, caiuiot be sustained as the trial Court has comptetety lost s^it of the fact that the matter was at the prelimmaiy stage and fhe petitioner/defendsuat No.2, who was the only contesting defendant has set-forth -^- reasonable groimds for explamiag the dday in ffling the written stateinent The trial coiut ought to have adanitted the written statement on record and then it woiild have proceeded in ffae trial iii accordaace wifh law. The trial court woiild have coiisidered that the prayer seeldng tiine beyond 90 days for fiUing the written statement was inade in writing and in such situation; considering the poiats raised, it would have almitted the writtEn stateinent by extending the tnne, which was uot done. (11) In view ofthe above, fhe petition is aUowed. The impugned order passed by fhe trial Court is set aside on the condition that the defendant No.2/petitioner shall pay to the plaintiff a suin of Rs.1000/- as fhe cost for causing delay in filing tfae written stateinent and on paymg/depositingwifhthe trial Court such cost only, withia a pertod of 3 weeks fbom today, the written statement filed by fhe defendant shaB be admitted on record. (12) It is madc cfcar that tfais order baa beea passed ex-parte wifhout hearing the opposite side, fherefoTe, if fhe opposite party feels a^rieved against the oider ia any naauner, it shaU be open for them to agitate their grievance bcfore fhis Court by taking appropriate action under the provisions oflaw. (13) The petition fa aUowed to the extent indicated above. It is fiaalfy disposed of. -__--—_„-—_-—- Sd/- (14) Nocosts. Sunil Kumar Sinha /Sunita/ -t-*'. ^^s- -....—-^fc. •is!afS:'""s-l&£asSv^f»- '6^^'S.^.