w HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (227) No. 562 of 2009 WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF TNDIA _ SB: Hon’ble Shri Satish K. Agnihotrh J. Present: Shri S.C.Verma, Advocate for the petitioner. Shri A.S.Kachhwaha, Deputy Advocate General for the State. ORAL ORDER (Passed onT..._._ 3O day of January, 2009) With the consent of learned counsel appearing for the paities. the matter is heard finally. 2) By this petition, the petitioners/defendants challenge the legality and validity of the order datedg10.1l.2008 (Annexure-P/l) passed by the Ilnd Additional District Judge, Raipur in civil suit No.6—A/2008, whereby opportunity to file written statement by the petitioners/defendants has been closed. 3) The brief facts, in nutshell, for adjudication of the case, are that the respondent No. 1/plaintid/filed’i‘a'hiyil suit for declaration and permanent injunction against the petitioners/defendants. The Court below issued summons to the petitioners/defendants and the petitioners/defendants caused their appearance before the trial Court on 06.12.2007. The matter was pending consideration before the learned Trial Court and on 6. 11.2008, learned counsel appearing for the petitioners/defendants in the Court below made a request that he met with accident, therefore the written statement could not be prepared. The learned Trial 'eourt, aher imposing cost of Rs. 1000/- , directed the petitioners/defendants to file written statement and the date for further hearing was fixed on 10.11.2008. On the said date, again request was made by the petitioners/defendants to give one more \ w PETITIONER : 1. Vijay Kumar Jain S/o Late Moolchand Jain, Defendants Aged about 56 yeam. 2. Shubham Entexprises, Raipur C/o Partner Vijay Kumar Jaim S/o Late Moolchand Jain, R/o C-48, Tagore Nagar, Raipur (C.G.) VERSUS ’ RESPONDENTS : 1. Mansingh Dube, Aged about 39 years, S/o Shri Plaintiffs D.S.Dubey, R/o Kashiram Nagar, Raipur (C.G.) Res/Defendant 2. The State of Chhattisgarh Through: The Collector, Raipur (C.G.) oppoxtunity to tile written statement. The learned Trial Court, aiier hearing both the parties, proceeded against the petitioners/defendants under the provisions of Order 8 Rule 10 ofthe Code of Civil Procedure, 1908 and the case was further listed for hearing on 19.01.2009 for adducing plaintiff’s/respondent No. 1 witnesses and the petitioners/defendants were restrained from filing written statement. Thus, this petition. 4) Shri S.C.Verma. learned counsel appearing on behalf of the petitioners/defendants submits that the petitioners could not file their written statement on account of the fact that on one occasion. the learned counsel appearing for the petitioners/defendants met with an accident and thereafter, on the second occasion, the petitioner No.1 went to London to meet his son. Therefore, in the interest of justice, one more opportunity ought to have been afforded to the petitioners/defendants to file their written statement. 5) I have heard learned counsel appearing for the petitioners, perused the pleadings and the documents appended thereto. The question involved in this case is asto whether limitation prescribed under the provisions of Order VIII Rule 1 ofthe CPC is mandatory and in no case written statement atter 90 days can be accepted by the trial Court. 6) The Supreme Court (three Hon’ble Judges) in Salem Advocate Bar Association, TN. vs. Union oflndz'a’ while dealing with the newl ’ amended provisions of Order VIII Rule l of the CPC held that the provision is directory, however, the order extending time to file written statement cannot be made in routine. Para 21 reads as under : “21. In const ing this provision, support can also be had ii'om Order 8 Rule 10 which provides that where any party from Whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the court, the court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks f1t. On failure to file written statement under this provision, the court has been given the discretion either to pronounce judgnent against the defendant or make such other order in relation to the suit as it thinks fit. In the context of the provision, despite use of the word “shall”, the court has been given the discretion to pronounce or not to pronounce the k \T.\‘ (2005) 6 sec 344 \\ judgment against the defendant even if the written statement is not flled and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order 8 Rule 1 and Rule 10, the doctrine of haxmonious construction is required to be applied. The effect would be that under Rule 10 Order 8, the couxt in its discretion would have the power to allow the defendant to tile written statement even aiier expiry of the period of 90 days provided in Order 8 Rule l. There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The court has wide power to “make such order in relation to the suit as it thinks ti ”. Clearly, therefore, the provision of Order 8 Rule 1 providing for the upper limit of9G days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time—limit of 9O days. The discretion of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8 Rule I.” 7) The Supreme Court (three Hon’ble Judges) in Kaiiash vs. Nanhku and othersi observed as under : “40. We find some merit in the submissions made by the learned counsel for both the parties. In our opinion, the solution and the correct position of V law lie somewhere midway and that is what we propose to do placing a reasonable construction on the language of Order 8 Rule l. 41. Considering the object and purpose behind enacting Rule 1 of Order 8 in the present form and the context i .Which the provision is placed, we are of the opinion tliat‘the-provision has to be construed as directory and not mandatory. In exceptionai situations, the court may extend the time for filing the written statement though the period of 30 days and 90 days, referred to in the provision, has expired. However, we may not be misunderstood as nullifying the entire force and impact —~— the entire life and vigour of the provision. The delaying tactics adopted by the defendants in law courts are now proverbial as they do stand to gain by delay. This is more so in election disputesbecause by delaying the trial of election petition, the successful candidate may succeed in enjoying the substantial part, if not in its entirety, the term for which he was elected even ‘ (2005) 4 SCC 480 ,\L though he may lose the battle at the end. Therefore, the judge trymg the case must handle the prayer for adjournment with firmness. The defendant seeking extension of time beyond the limits laid down by the provision may not ordinarily be shown indulgence. 3) “11. It is notorious that suits were being dragged on by the defendants in suits by not filing their written statements within a reasonable time. We are not unaware of cases where written statements were not filed even Within two or three years of the filing of the suits. The control expected to be exercised by courts, by the scheme of the Code, was not being exercised leading to slackness in the matter of filing of pleadings in defence. It was in that context that the relevant provisions of the Code of Civil Procedure were amended, the laudable object being to avoid delay in the disposal of suits. The amended Order 8 Rule 1 fixes a time-limit for the filing of written statements. But, Parliament did not stop with amending Order 8 Rule l alone i.e. introducing a time-limit for filing written statements and restricting the power of the court to grant extension of time for filing written statements as 90 days horn the date of service ofsummons. The power for extension oftime granted to the couit under Section 148 of the Code was curtailed by introducing an outer time-limit of 30 days from the date originally fixed or gamed. Thus, the legislative intent to limit or cuitail the power of the court to extend the time for filing a written statement is obvious from a conjoint reading of these provrsmns. 14. It is true that procedure is the handmaid of justice. The coui‘t‘niiist always be anxious to do justice and to prevent victories by way of technical knockouts. But how far that concept can be stretched in the context ofthe amendments brought to the Code and in the light of the niischiefthat was sought to be averted is a questiOn that has to be seriously considered. I am conscious that I was a party to the decision in Kailash v. Nanhku which held that the provision was directory and not mandatory. But there could be situations where even a procedural provision could be construedas mandatory, no doubt retaining a power in the court, in an appropriate case, to exercise a jurisdiction to take out the rigour ofthat provision or to mitigate genuine hardship. It was in \ 3 r2007) 1 6 scc 420 Subsequently; the Supreme Court in RNJadz' & Brothers and others V. Subhashchandrai observed as under : that context that in Kailash v. Nanhku it was stated that the extension of time beyond 90 days was not automatic and that the court, for reasons to be recorded, had to be satisfied that there was sutticient justification for departing horn the time-limit fixed by the Code and the power inhering in the court in terms of Section 148 of the Code. Kailash is no authority for receiving written statements, after the expiry of the period permitted by law, in a routine manner.” r 9) A common thread running in the above cited cases is that though the provision of Order VIII Rule 1 of the CPC is procedural and directmy, however, tiling of written statement after a period of 9O days may be permitted for cogent reasons in order to facilitate the administration of justice and not in routine. 10) In the instant case the suit was filed on 20.02.2007. The petitoners/ defendants appeared in the Court below through their counsel on 06.12.2007 alter receiving notice much after 90 days. Thereaher, despite several opportunities gamed the petitioners/defendants could not tile the written statement Within the stipulated period. The reasons mentioned for not filing the written statement and for granting further time are also not cogent as the petitioners/defendants were not restrained on account of any unavoidable circumstances which was beyond control of the petitioners/defendants, as the defendant/petitioner No. 1 on his own statement, was staying in London with his son, Without any reason. 11) There were no exceptional circumstances which prevented petitioners/defendants from tiling the written statement. Thus, there is no illegality or infirmity in the/impugmdorder. ll) For the reasons mentioned hereinabove, the petition is liable to be dismissed and it is hereby dismissed. l2) Consequently, LA. No. l, also stands dismissed. l sw- Satish K. Agnihotri, . Judge l l t l l