1 S.B. CIVIL WRIT PETITION NO.1737/2008. Jaman Singh Vs. Additional District Judge, Rajgarh & Ors. Date of Order :: 28th April 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. R.K. Singhal, for the petitioner. ..... BY THE COURT: The plaintiff-petitioner has filed this writ petition on 11.03.2008 seeking to challenge an order dated 25.07.2005 (Annex. 3) passed by the Additional District Judge, Rajgarh in Civil Suit No. 27/2004 whereby, while rejecting an application moved by the petitioner under Order VIII Rule 1 of the Code of Civil Procedure (CPC), the written statement filed by the defendant No.1 has been taken on record on costs of Rs.500/-. The background facts and relevant aspects as discernible from the averments taken in the petition, the documents annexed thereto, and the order-sheets placed for perusal by the learned counsel during the course of arguments are that the plaintiff-petitioner filed a suit for declaration and injunction in the Court of Munsif, Taranagar (Churu) on 24.08.1993 seeking to question the alleged adoption of the defendant No.1 Jaswant Singh (respondent No.2 herein) by late Smt. Sara Bai and further seeking to question a Will 2 executed by her in favour of the said defendant essentially on the ground that the plaintiff was taken in adoption by Shri Nahar Singh, husband of the said Smt. Sara Bai. According to the plaintiff, Smt. Sara Bai had no authority to take the defendant No.1 in adoption and the Will executed by her in favour of the said defendant was void and of no legal effect in relation to the rights of the plaintiff to the extent of ½ share in the property in question. It appears that the defendant did appear in the said suit filed in the Court of Munsif, Taranagar and did put his written statement on record but thereafter, on 03.10.2001, the said Court returned the plaint for want of jurisdiction. It appears further that after its return from the Court of Munsif, Taranagar, the plaint was presented to the Court of Additional District Judge, Churu on 20.10.2001; and the defendant No.1 Jaswant Singh appeared in the proceedings before the Additional District Judge, Churu on 13.12.2001. On 20.08.2002, the Court in which the plaint was so presented after its return passed an order in relation to the objection regarding court fees; and directed the plaintiff- petitioner to make payment of ad valorem court fees. The petitioner has cursorily stated in this petition about such order having been challenged before this Court but without particulars of such proceedings, if at all taken up before this 3 Court. It appears that on similar kind of submissions that some proceedings were taken up before this Court the plaintiff took several opportunities for making up deficiency of the court fees; and the suit was ordered to be registered only on 28.05.2004 after the plaintiff-petitioner ultimately submitted the requisite court fees. The learned Trial Curt on this date also requisitioned the record at the request of the plaintiff from the record room of the District Judge, Churu and directed issuance of summons to the legal representatives of Sohan Singh and Kale Singh, the other defendants. Thereafter, fresh summons were ordered to be issued on 09.07.2004 and on 28.08.2004 to the unserved defendants; and ultimately service was complete on 17.09.2004 and the matter was adjourned to 08.10.2004 for filing of the written statement. An opportunity was granted on 08.10.2004 and the matter was adjourned to 29.10.2004. Again on 29.10.2004, another opportunity was granted for filing of the written statement and the case was adjourned to 19.11.2004. On 19.11.2004, the plaintiff-petitioner filed the application under Order VIII Rule 1 CPC (Annex.1 herein) with the submissions that the defendant Jaswant Singh had been attending the proceedings ever since 13.12.2001 and has yet not filed his written statement though the suit was registered after depositing ad valorem court fees on 28.05.2004. The 4 plaintiff urged that the written statement was required to be filed, in any case, within 90 days from service of summons and the time for filing written statement could not be extended beyond 90 days and hence, right of the defendant Jaswant Singh to file written statement ought to be closed. This very day, i.e., on 19.11.2004, the defendant Jaswant Singh did file his written statement but the learned Trial Court deferred passing of any order for taking the same on record until disposal of the application filed by the plaintiff. Record of the proceedings show that thereafter the matter was dealt with on the applications filed by the respective parties under Order VII Rule 11 CPC, under Order VII Rule 14 CPC, and under Order VIII Rule 1-A CPC. On 14.07.2005, documents were taken on record with consent of the respective opposite parties; the application under Order VII Rule 11 CPC was dismissed as not pressed; and arguments were heard on the application moved by the plaintiff under Order VIII Rule 1 CPC. The defendant Jaswant Singh filed a reply to the application as moved by the plaintiff under Order VIII Rule 1 CPC and submitted that the written statement had been filed on 19.11.2004 within time granted by the Court and that earlier the written statement had already been filed in the Court of Munsif, Taranagar. The defendant prayed for rejection of the application filed by the plaintiff and for taking 5 the written statement, that had already been filed, on record. The learned Trial Court has proceeded to reject the application as moved by the plaintiff-petitioner by its impugned order dated 25.07.2005 with reference to the background facts about earlier filing of the suit in the Court of Munsif, Taranagar and filing of written statement therein; about making up of deficiency of court fees by the plaintiff in the present proceedings only on 28.05.2004; and about the proceedings having been remained pending for service and order for filing written statement having been made only on 17.09.2004 and the written statement having been filed on 19.11.2004. Seeking to challenge the order dated 25.07.2005, the plaintiff has chosen to file this writ petition on 11.03.2008 with the submissions that himself being an old person and not keeping good health for last about three years could not contact his lawyer at Rajgarh and as such had no information about passing of the order in question till his contacting the lawyer on 05.01.2008. The petitioner has urged the grounds in this writ petition that the order taking written statement on record on costs of Rs. 500/- suffers from jurisdictional error inasmuch as the defendant Jaswant Singh was bound to submit his written statement within 30 days of service of summons; that though the defendant put in appearance through his lawyer on 13.12.2001 but he shall be deemed to 6 have been served with the summons in the suit on 28.05.2004 when the suit filed by the petitioner was ordered to be registered. According to the petitioner, if the said defendant failed to file the written statement within 30 days, he could have been permitted by the Court to file his written statement, for reasons to be recorded, on other specified day not later than 90 days from the date of service of summons; and that the written statement filed after 155 days without even an application for extension of time could not have been taken on record. The petitioner contends that the observations of the learned Trial Court about no order having been made for filing of written statement prior to 17.09.2004 were not justified because the defendant was legally bound to file the written statement within the time prescribed by law and no order of the Court was required to be passed in that regard. The petitioner would further submit that the Trial Court has failed to appreciate mandatory nature of the provisions regarding filing of written statement within 30 days and that the Hon'ble Apex Court has recently held that power to extend the period for submission of written statement beyond the period prescribed by the statute should be exercised only in very exceptional circumstances whereas there are no such exceptional circumstances in the present case. 7 While hearing the submissions in challenge to the impugned order dated 25.07.2005 and in support of the grounds taken in this writ petition, this Court expressed its reservations on tenability of such grounds; and learned counsel for the petitioner was also informed about the view earlier taken by this Court including that in CWP No. 7257/2007 (Shiv Kumar & Anr. Vs. Prahlad Ray & Ors.) that such challenge to the orders passed by the learned Trial Court for taking the written statement on record is ordinarily not countenanced in the proceedings under Article 227 of the Constitution of India and rather, this Court has adopted the proposition of modifying the orders passed by the learned Trial Court in such matters by diverting the amount of costs to Legal Aid. Learned counsel for the petitioner responded with the submissions that in view of the decision of the Hon'ble Supreme Court in Aditya Hotels (P) Ltd. Vs. Bombay Swadeshi Stores Ltd. & Ors. : 2008 (1) WLC (SC) 300 when the learned Trial Court has not indicated any reason to justify acceptance of written statement after expiry of statutory time, the impugned order deserves to be set aside. Having examined the matter in its totality, this Court is constrained to observe that not only this writ petition remains bereft of substance but further, by taking up this frivolous petition, the petitioner has amply demonstrated that the Trial 8 Court has committed error in allowing him the amount of costs. In the very first place, significant it is to notice that this writ petition seeking to challenge the order dated 25.07.2005 has been filed only on 11.03.2008, more than 2 ½ years after passing of the said order. A cursory and cryptic statement has been made about the petitioner being an old aged person and having no information about passing of the order prior to 05.01.2008. The suit as filed by the petitioner is said to be pending consideration and the petitioner has not stated the progress of the proceedings after the impugned order was passed on 25.07.2005. Be that as it may, on the cursory averments as taken, the petitioner cannot be acceded a latitude to invoke extraordinary jurisdiction of this Court more than 2 ½ years after passing of the impugned order and that too when the said impugned order has nothing to do with the merits of the main case. This writ petition deserves to be dismissed only on the ground of inordinate delay. Noteworthy further is the conduct of the plaintiff- petitioner in the present case where he filed the suit in the year 1993 in a Court not having jurisdiction to deal with the matter. The plaint was returned on 03.10.2001 and was presented to the Court of Additional District Judge, Rajgarh on 20.10.2001 but then, the Court was required to pass an order on 20.08.2002 for proper valuation and court fees. The 9 plaintiff chose to honour the said order only on 28.05.2004 and then only the suit was registered. Then, as noticed above, this writ petition seeking to challenge the order dated 25.07.2005 has been filed after more than 2 ½ years. There does not appear even a semblance of justification with the plaintiff- petitioner to suggest that this suit be decided without taking on record the written statement filed by the defendant. Significant fact in the present case remains that on 28.05.2004 though the learned Trial Court ordered to register the suit, it had directed for summoning of the record from the record-room of District Court, Churu and issued summonses to the unrepresented defendants; and service was complete on 07.09.2004 and then, the matter was adjourned for filing of the written statement. On 08.10.2004, and again on 29.10.2004, time was granted by the learned Trial court in the interest of justice for filing of written statement and the matter was adjourned to 19.11.2004. Admittedly, on this date, i.e. 19.11.2004, written statement was filed by the defendant No.1. Noteworthy further it is that on 14.07.2005, even while the matter was contested on this application under Order VIII Rule 1 CPC relating to the written statement, both the parties agreed on the respective applications filed for production of documents and the documents were taken on record with consent! 10 Looking to the overall facts and special circumstances of the case, when the learned Trial Court has found it just and proper to take the written statement filed on 19.11.2004 on record, the exercise of jurisdiction remains unexceptionable and does not suffer from any illegality. In Aditya Hotel's case as relied upon by the learned counsel for the petitioner, the Hon'ble Supreme Court, with reference to the earlier decision in Kailash Vs. Nanhku & Ors. : 2005 (4) SCC 480 has pointed and held,- 6. The parameters for extending the time granted by Order VIII Rule 1 of the Code have been delineated by this Court in several cases. In Kailash Vs. Nanhku and Ors. (2005 (4) SCC 480) it was noted as follows: “42. Ordinarily, the time schedule prescribed by Order 8 Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the Court within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for the asking, more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the court to its satisfaction. It must be spelled out that a departure from the time schedule 11 prescribed by Order 8 Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended. 44. The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the court. In no case, shall the defendant be permitted to seek extension of time when the court is satisfied, that it is a case of laxity or gross negligence on the part of the defendant or his counsel. The court may impose costs for dual purpose : (i) to deter the defendant from seeking any extension of time just for the asking, and (ii) to compensate the plaintiff for the delay and inconvenience caused to him.” 7. Since neither the trial Court nor the High Court have indicated any reason to justify the acceptance of the written statement after the expiry of the time fixed, we set aside the orders of the trial Court and that of the High Court. The matter is remitted to the trial Court to consider the matter afresh in the light of what has been stated in Kailash's case (supra). The appeal is allowed to the aforesaid extent with no order as to costs.” (emphasis supplied) In its overall circumstances, the present one cannot be said to be undoubted a case of acceptance of written statement after the expiry of time fixed. Moreover, even if the 12 hyper-technical suggestion of the plaintiff-petitioner is taken into consideration, the reasons as indicated by the learned Trial Court in the order impugned for taking the written statement on record cannot be said to be no reasons at all. The learned Trial Court has amply indicated that in the very peculiar and exceptional circumstances, the written statement was required to be taken on record. The relevant and significant facts and factors cannot be ignored that in the earlier proceedings as filed before the Court of Munsif at Taranagar, the very same defendant did file his written statement; that delay, whatever, that has occurred in the present suit proceedings in the Court at Rajgarh could only be attributed to the plaintiff, who seems to have avoided making payment of requisite court fees probably on the pretext that the matter was taken to this Court; that there does not appear any order having been passed by the learned Trial Court for deeming service on the defendant with registration of the suit; that the plaintiff had taken time to get the other defendants served; that on 29.10.2004, the learned Trial court granted time for filing of the written statement by 19.11.2004; and that the written statement was in fact filed on 19.11.2004. The submission that the provisions of Order VIII Rule 1 CPC are mandatory in nature deserves to be rejected with reference to the decision of the Hon'ble Supreme Court in 13 Kailash Vs. Nanhku & Ors. (supra) wherein the Hon'be Supreme Court said,- “45. ........ (iv) The purpose of providing the time schedule for filing the written statement under Order 8 Rule 1 CPC is to expedite and not to scuttle the hearing. The provisions spells out a disability on the defendant. It does not impose an embargo on the power of the court to extend the time. Though the language of the proviso to Rule 1 Order 8 CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the procedural law, it has to be held directory and not mandatory. The power of the court to extend time for filing the written statement beyond the time schedule provided by Order 8 Rule 1 is not completely taken away.” (emphasis supplied) It is also noteworthy that the Three-Judges Bench of the Hon'ble Supreme Court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India : (2005) 6 SCC 344 has also pointed out that the provision in Order VII Rule 1 CPC is directory in nature. The Hon'ble Supreme Court said,- “21....... Clearly, therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 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 90 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 1.” 14 Profitable it shall also be to recite the principles relating to the approach towards the rules of procedure as illuminated by the Hon'ble Supreme Court in the case of Sangram Singh Vs. Election Tribunal, Kotah & Anr. : AIR 1955 SC 425 followed and applied hitherto by the Courts that,- “16. Now a code of procedure must be regarded as such. It is 'procedure', something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it. 17. Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.” The order impugned as passed by the learned Trial Court taking the written statement on record appears to be clearly in conformity with all the principles aforesaid and 15 cannot be said to be suffering from any jurisdictional error. In the facts and circumstances, this Court is constrained to observe that in the present case, there does not appear any laxity on the part of the defendant; and on the contrary, it is the plaintiff-petitioner who has shown at every stage of proceedings that he is interested in protracting the suit proceedings one way or the other. With amendment to the Code of Civil Procedure by the Amendment Act of the year 1999, particularly with alterations in the scheme and operation of Section 115 of the Code of Civil Procedure, interference under Article 227 of the Constitution of India is, sparingly, considered in the matters relating to the orders passed by the subordinate courts during the course of a civil litigation in such kind of cases where the impugned order might lead to substantial failure of justice or to such injury that could be said to be irreparable one to a party to the litigation; or the matters of the like nature. Having regard to the overall facts and circumstances, the exercise of jurisdiction in the present case, of taking written statement on record, cannot be said to be leading to any injustice what to say of substantial failure of justice. However, by putting challenge to a reasonable and just order passed by the learned trial court, the petitioner has amply demonstrated that the Trial Court has, of course, committed an error in allowing 16 him costs of Rs.500/- while taking the written statement on record. This Court, while rejecting another such frivolous writ petition, being CWP No.732/2008 (Shankar Lal & Anr. Vs. Additional District Judge, Sujangarh & Anr.) on 01.02.2008 has observed and held,- “It is to be imbibed that rules of procedure are intended to subserve the cause of justice and any order made during the course of litigation pertaining to procedure that facilitates decision of real matter in issue on merits, and of extending opportunity to a party to place his case before the court, if not prohibited by law, ordinarily does not call for interference. After amendment to the Code of Civil Procedure by the Amendment Act of 1999 and alteration of the provisions of Section 115 CPC, the writ jurisdiction of this Court particularly under Article 227 of the Constitution of India is, sparingly, considered for application in the cases where the order impugned would result in manifest failure of justice or of the situation like nature but and however, such jurisdiction is not meant to provide an opportunity to any litigant to suggest a proposition that is in opposition to the requirements of the decision of a lis by the courts on merits after affording fullest opportunity of hearing to the parties; or to somehow create spokes in progress of the litigation. In the overall circumstances of the case, this Court is satisfied that the petitioners do not deserve to be allowed the amount of costs of Rs.2,000/- as imposed by the learned trial court; and such amount of costs should go in legal aid.” In the present case too, having regard to the overall facts and circumstances, this Court is clearly of opinion that even if the defendant is put on the terms of costs, such costs ought to go to the concerned District Legal Services Authority 17 and not to the petitioner. Looking to the conduct of