HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 312 of 2009 (M/S) Suraj Chauhan and another .……… Petitioners Versus Smt. Pushpa Prasad and others …… Respondents WITH Writ Petition No.313 of 2009 (M/S) Suraj Chauhan and another .……… Petitioners Versus Smt. Pushpa Prasad and others …… Respondents Mr. Alok Singh, Senior Advocate for the petitioners. Mr. B. P. S. Mer, Advocate for respondent no.1 & 2. Hon’ble J.C.S. Rawat, J. By this common judgment, both appeals are being disposed of together because there is a common question of law involved in both petitions. 2. With the consent of the learned counsel for the parties, both these petitions are being disposed of finally today at the motion hearing stage without admitting them for hearing. 3. Writ Petition No.312 of 2009 (M/S) under Article 226/227 of the Constitution of India has been filed with the prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned judgment/order dated 16.02.2009 passed by Additional District Judge / F.T.C. – IV, Dehradun in Civil Revision No.10/2009 and judgment/order dated 23.01.2009 passed by the 1st Addl. Civil Judge (S.D.) Dehradun in Original Suit No.723 of 2005 Pushpa Prasad Vs. Suraj Chauhan & others. 4. Writ Petition No.313 of 2009 (M/S) under Article 226/227 of the Constitution of India has been filed with the prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned judgment/order dated 03.02.2009 passed by the Additional Civil Judge (S.D.), Dehradun in Original Suit No.180 of 2004 by which the petitioner’s application 40C for accepting the written statement on record was rejected. 5. Brief facts of the case are that respondent no.1-Smt. Pushpa Prasad filed two suits being Original Suit Nos.180/2004 and 723/2005 on 24.03.2004 and 23.12.2005 respectively. After registration of these suits, the dates were fixed for filing the written statements and for framing of issues. Thereafter, no written statement was filed and several dates were fixed either for framing of issues or for filing the written statement. The court even beyond 90 days time allowed the defendants to file the written statement. 6. O.S. No.180/2004 was filed by the plaintiff/respondent no.1 on 24.03.2004. Thereafter, the case was put up for filing the objection / written statement. When the written statement was not filed after a long period the plaintiff filed an application No.36-C2 to initiate the proceeding under Order VIII Rule 10 C.P.C. and the defendant no.1-petitioner filed the written statement alongwith an application for condoning the delay in filing the written statement. Thereafter, vide order dated 03.02.2009 the petitioner’s application No.40C for accepting written statement was rejected by the Addl. Civil Judge (S.D.), Dehradun. Feeling aggrieved by this, W.P. No.313 of 2009 (M/S) has been filed by the petitioner. 7. So far as the Writ Petition No.312 of 2009 (M/S) is concerned, the O.S. No.723 of 2005 was instituted on 23.12.2005. Thereafter, the several dates for written statement and issues were fixed. On 27.11.2008 the written statement was filed before the court below by the defendant nos.1 & 2 alongwith an application. On 21.11.2008 the plaintiff filed an application No.25C before the court below that as the defendants have not filed the written statements after a long time the case may be proceed under Order VIII Rule 10 C.P.C. The trial court vide order dated 23.01.2009 directed that the written statements filed by the defendants be not taken on record and the application No.25C filed by the plaintiff for proceeding the case under Order VIII Rule 10 C.P.C. was allowed. Feeling aggrieved by this, a Civil Revision No.10/2009 was preferred before the Addl. District Judge, Dehradun by the defendant nos.1 & 2 and the same was dismissed vide judgment/order dated 16.02.2009. Feeling aggrieved by order of the trial court and the revisional court, W.P. No.312 of 2009 (M/S) has been filed by the petitioners / defendant nos.1 & 2. 8. I have heard learned counsel for the parties and perused the record. 9. Perusal of the record reveals that in O.S. No.180/2004 vide order dated 02.07.2008 the court below ordered that the case be put up on 29.08.2008 for filing the objection / disposal / written statement. On 29.08.2008 the plaintiff was absent and no adverse order was passed dismissing the suit and it was fixed for 23.10.2008 for the issues and for disposal of other applications. No time was extended for filing the written statement. It is pertinent to mention here that no application for filing the written statement or extension of time was filed by the defendants / petitioner. On 23.10.2008 the Presiding Officer was on leave and it was fixed 03.12.2008 for disposal and issues. Thereafter, the case was transferred. No application for filing the written statement or for extension of time was filed till 03.12.2008. The Order sheet dated 03.12.2008 reveals that the plaintiff filed an application No.36-C2 for proceeding the suit under Order VIII Rule 10 C.P.C. and the defendant no.1-petitioner filed the written statement alongwith an application for condoning the delay in filing the written statement. It was definitely filed after expiry of 90 days. 10. So far as the Writ Petition No.312 of 2009 (M/S) is concerned, the O.S. No.723 of 2005 was instituted on 23.12.2005. Thereafter, the several dates for written statement and issues were fixed. It is pertinent to mention here that on 01.09.2008 the trial court suo-moto adjourned the case because the lawyers were on strike and fixed on 21.11.2008 for the written statement, however, there was no application on behalf of the defendant no.1 & 2/petitioners. On 21.11.2008 the case was adjourned, the defendant no.3 was transposed as plaintiff no.2 and the case was fixed on 27.11.2008. Defendant nos.1 & 2 did not file any application for extension of time for filing the written statement till 27.11.2008. On 27.11.2008 the written statement was filed before the court below by the defendant nos.1 & 2 alongwith an application. 11. Both the applications filed by the defendant nos.1 & 2 only disclose that the defendant nos.1 & 2 are illiterate persons, they could only sign on the documents and they have no knowledge about the law. It has also been alleged that their counsel did not inform them about the time limit of 90 days for filing the written statement and as such, they have changed their counsel. 12. Learned senior counsel for the petitioners contended that since the trial court has granted time in O.S. No.180/2005 till 02.12.2008 for filing the written statement, hence the written statement should have been accepted by the trial court. It was further contended that the trial court has erred in not accepting the written statements submitted by the defendant nos.1 & 2 before the trial court. It was further submitted that the dates which were fixed for framing issues after 02.07.2008 include the extension of time for filing the written statement. He further contended that Order VIII Rule 1 C.P.C. is a procedural rule and the rules of procedure are the handmaid of justice. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the court in which the case is pending. The words used in processual law may be construed liberally. The object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. The other party should not be allowed to take a walkover on the another without being contested. It was further contended that the trial court has granted time for framing issues till 03.12.2008 and as such, the time was granted to file the written statement in view of the judgment of the Apex Court in Shaikh Salim Haji Abdul Khayumsab Vs. Kumar & others 2006 (1) SCC 46. Learned senior counsel for the petitioners has also relied upon the decisions of the Apex Court in Kailash Vs. Nanhku 2005 (4) SCC 480, Murli Manohar Vs. U.P. Sugar Company Ltd. Servahi 2009 (74) ALR 195, and Zolba Vs. Keshao & others AIR 2008 SCC 2099. Learned counsel for the respondent refuted the contentions and contended that the petitioner had never sought time for filing the written statement after 02.07.2008. The case was adjourned on several dates either one ground or the other for framing of issues. The trial court never granted any time for filing the written statement to the petitioners. It was further contended that the court can grant the extension of time beyond 90 days only if the exceptional circumstances are shown to the court. The defendants had not shown any exceptional circumstances. It was further contended on behalf of the respondent that the dates were fixed by the trial court for framing issues and it cannot be assumed that the trial court had impliedly allowed the defendant nos.1 & 2 / petitioners to file the written statement on the date fixed for issues. The defendants never bothered to file the application to seek the extension of time for filing the written statement. 13. The amended provision of Order VIII Rule 1 C.P.C. casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The Apex Court while dealing with this aspect in the case of Kailash (supra) held that the provisions of Order VIII Rule 1 CPC was only incorporated under the provisions of the Court to expedite the proceedings of the case. It was further held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for the asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the court on its being satisfied. It was further held that the extension of time may be allowed if it is needed to be given for circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Thus, the same view has been taken in the latter judgments of the Apex Court. The proposition which was placed before me is that the court has granted time to file the written statement in O.S. No.180 on 03.12.2008. The argument raised on behalf of the defendant no.1 is not tenable because the defendant no.1 never applied for seeking extension of time. After 29.08.2008 though the case was adjourned on several times and on each and every the date was fixed for framing issues. The defendant no.1/petitioner has submitted his written statement in a routine way on 03.12.2008 in O.S. No.180/2004 and the defendant nos.1 & 2 have submitted their written statements on 27.11.2008 in O.S. No.173/2005 alongwith application to keep the written statements on record. The Apex Court in the case of Kailash (supra) has categorically stated in para 46(v) that the extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing. In the instant cases, no reason has been assigned for delay in filing the written statements. In the instant case, the petitioners/defendant nos.1 & 2 were not vigilant about their cases and they were taking the matter casually. If the court has granted time for framing issues, it cannot be assumed that the time was also granted for filing the written statements. The judgments on which the learned senior counsel for the petitioner has relied are not applicable in this case. 14. In O.S. No.723 of 2005 the trial court suo-moto granted time to the petitioners defendant nos.1 & 2 to file written statement on 01.09.2008 till 21.11.2008. Admittedly, the written statement was not filed by 21.11.2008. Learned senior counsel for the petitioners explained that there was no need to file the application because the case was fixed for transposition of defendant no.3 as plaintiff. It is admitted that no application was filed by the petitioners (defendant nos.1 & 2). Meaning thereby, the written statement alongwith an application was filed on 27.11.2008 when the suit was fixed for orders. Thus, no cogent reason has been assigned for not filing the written statement. No explanation was given as to why the written statement was not filed during that period. It is pertinent to mention here that the suit was registered on 23.12.2005 and 20.04.2006 was fixed by the court below for written statement. But, the service of notice was made on a later date. But, it is admitted that the written statement has been filed after a long delay. 15. In both cases, a separate application was filed before the trail court with a prayer to keep the written statements on record. The applications which were filed before the trail court for accepting the written statement did not disclose any cogent reasons for extension of time to file the written statement. Reasons which have shown are not cogent and these are just as a matter of routine. In this regard, the Apex Court in the case of Kailash (supra) has specifically held as follows:- “46(i) …………. 46(ii) 46 (v) Though Order 8 Rule 1 CPC is a part of procedural law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for the asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the court on its being satisfied. Extension of time may be allowed if it is needed to be given for circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case. 16. The Apex Court in the case of R. N. Jadi & Bros. Vs. Subhash Chandra 2007 (6) SCC 420 has held as follows:- “15. A dispensation that makes Order 8 Rule 1 directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasise that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order 8 Rule 1 must be adhered to and that only in rare and exceptional cases, will the breach thereof will be condoned. Such an approach by courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in courts. The lament of Lord Denning in Allen v. Sir Alfred McAlpine & Sons 1968 (2) QB 229, 1968 (2) WLR 366 that law’s delays have been intolerable and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times?” 17. In view of the above, I am of the view that no interference is required in the impugned orders. I do not find any infirmity in the impugned orders of the courts below. Both the petitions lack merit and are liable to be dismissed. Both the petitions are dismissed accordingly. No order as to costs. (J.C.S. Rawat, J.) Dated 03rd March, 2009 LSR