IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 OP(C).No. 361 of 2011(O) ------------------------ OS.206/2010 of MUNSIFF COURT,ATTINGAL .................... PETITIONERS/ PLAINTIFFS 1-3 ---------------------------------- 1. A.LEELA, KUNNUVILA VEEDU, KURAKKADA P.O., KIZHUVILAM VILLAGE, CHIRAYINKIL TALUK. 2. KOCHUCHERUKKAN, KUNNUVILA VEEDU, KURAKKADA P.O., KIZHUVILAM VILLAGE, CHIRAYINKIL TALUK. 3. A.VIKRAMAN, KUNNUVILA VEEDU, KURAKKADA P.O., KIZHUVILOM VILLAGE, CHIRAYINKIL TALUK. BY ADV. SRI.RAJESH. K.RAJU SRI.INNOCENT FRANCIS PAPALI RESPONDENTS/ DEFENDANTS 1&2 ----------------------------- 1. R.RADHAVAN, CHARUVILA VEEDU, KIZHUVILOM VILLAGE, KIZHUVILOM DESOM, CHIRAYINKIL TALUK-691006. 2. K.S.KRISHNA SASTRI, AGED 80 YEARS, THATTASERI VEEDU, SOORANADU, KUNNATHOOR-690522. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 31/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------ O.P(C).No.361 OF 2011 ------------------------------ Dated this the 31st day of January, 2011 JUDGMENT The plaintiffs in O.S.No.206 of 2010 on the file of the Court of the Munsiff, Attingal, challenge the order dated 22nd September, 2010 in I.A. No.2494 of 2010 by which the court below accepted the written statement filed by the first defendant; and the order dated 13th December, 2010 in I.A.No.2830 of 2010 by which the court below dismissed the application for review of the aforesaid order. 2. In the suit, the first defendant received summons on 15.6.2010. The suit was posted on 30.6.2010. On 30.6.2010, the counsel for the first defendant filed vakalath. The case was posted to 4.8.2010. According to the petitioners(plaintiffs), on 4.8.2010, a submission was made by the first defendant that the written statement was being filed. Accordingly, the court posted the case to 22.9.2010 for settlement of issues. The O.P(C).No.361 OF 2011 2 proceedings in the suit do not indicate that on 4.8.2010, a submission was made by the first defendant that the written statement was being filed. The order dated 4.8.2010 only shows that the case is posted for settlement of issues to 22.9.2010. 3. On 22.9.2010, the first defendant filed I.A.No.2494 of 2010 to accept the written statement since the written statement was filed beyond the period of 90 days from the date of receipt of the summons as mentioned in the proviso to rule 1 of Order VIII of the Code of Civil Procedure. The court below allowed I.A.No.2494 of 2010 on 22nd September, 2010 itself. The grievance of the petitioners is that they were not given an opportunity to file counter in I.A.No.2494 of 2010. Accordingly, they filed I.A.No.2830 of 2010 to review the order dated 22nd September, 2010. The court below dismissed I.A.No.2830 of 2010 by the order dated 13th December, 2010 holding that there is no error apparent on the face of the order sought to be reviewed. O.P(C).No.361 OF 2011 3 4. The learned counsel for the petitioners submitted that a written statement ought to have been filed within a period of 30 days from the date of receipt of the summons. The proviso to rule 1 says that the court can allow, for reasons to be recorded in writing, time up to only 90 days. It is submitted that no reasons are stated and that the written statement was not filed within 90 days. 5. The learned counsel for the petitioners relied on the decision of the Supreme Court in Shalini Shyam Shetty & another v. Rajendra Shankar Patil [(2010)8 SCC 329] and laid emphasis on paragraph 49(g) of the judgment which reads as follows: 49(g). “Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.” O.P(C).No.361 OF 2011 4 6. In the same judgment sub paragraph (h) of paragraph 49 reads as follows: “49(h). In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.” 7. There cannot any right for the plaintiffs to get a decree without allowing the defendants to file a written statement. The question whether the written statement filed out of time is to be accepted or not, depends on the discretion to be exercised in the matter. The court below exercised the discretion in favour of accepting the written statement. The maximum that would happen if the written statement is accepted is that the suit will be decided on the merits. No prejudice would be caused to the plaintiffs if the suit is decided on the merits. There cannot be any vested right to get a decree uncontested. O.P(C).No.361 OF 2011 5 8. The very purpose of the amendment brought out to the Code of Civil Procedure by the Amendment Acts 1999 and 2002 is to ensure that suits are disposed of expeditiously. If this Original Petition is admitted and notice is ordered to the respondents, it would cause further delay in the matter. As held by the Supreme Court in Shalini Shyam Shetty's case, the power of Superintendence of the High Court cannot be invoked to correct mere errors of law or fact or just because another view is possible. The court below thought that the written statement shall be accepted in the facts and circumstances of the case. I do not find any ground to interfere with the order passed by the court below. The Review Petition was also rightly dismissed. For the aforesaid reasons, the Original Petition is dismissed. K.T.SANKARAN, JUDGE. cms