WP(C)/17/2008 of Dharma Shamsher Basnet Vs T.S Chetttri on 7 December 2009

THE HIGH COURT 0F SIKKIM = GANGTOK

(Civil Writ Jurisdiction)

WP(C) No.17 of 2008

Mr. Dharma Shamsher Basnet:,S/o Late P. 8. Basnet, `R/o 5th Mile, Tadong,P.O. Samdur,P.S. Ranipool,East: Sikkim.

2. Mrs. Milan Basnet,%°5nghr.MB::I::osn::msherBasnet,P.O. Samdur,P.S. Ranipool,East Sikkim.

...,. Petitioners

versus

Mr. T. S. Chettri,S/o Late Dal Bahadur Chettri,R/o 5th Mile, Tadong,P.0. Samdur,P.S. Ranipool,East Sikkim.

Mrs. Pampha Tiwari,W/o Late H. P. Sharma,R/o 5th Mile, Tadong,P.O. Samdur,P.S. RanipooI,East Sikkim.

Mrs. Bina Chettri,%°5Thr.MP|.e+:::]'g'P.O. Samdur,P.S. Ranipool,East Sikkim.

4. Mrs. Hemlata chettri,%°5Thr.MT,:,B+aKdhoanti#daJP.O. Samdur,P.S. Ranipool,East Sikkim...... Respondents y- PRESENT : HON'BLE MR. JUSTICE A. H. SAIKIA, CHIEF JuSTICE.HON'BLE MR. JUSTICE A. P. SUBBA, JUDGE.

Last date of hearing : 02-11-2009

DATE OF JUDGMENT : 07-12-2009

I ± D £ M E J± I

Subba, J_.

This writ petition filed by the two defendants in TitleSuit No.2 of 2006 pending in the Court of learned Civil Judge,East & North Sikkim at Gangtok is directed against theinteriocutory order dated 01-05-2008 passed by the learnedCourt of the Civil Judge, East & North Sikkim at Gangtokrejecting the application filed by the petitioners for extension oftime to file written statement in the suit.

2. The facts of the case relevant for the presentpurpose are that the plaintiffs who are respondents herein filed aCivil Suit on 10-07-2006 against the present petitioners seekinga decree for declaration, mandatory injunction and other reliefs.Along with the plaint, the plaintiffs also filed an injunctionapplication under Order XXXIX Rules 1 and 2 read with Section giv _i- 151 of the Code of Civil Procedure, 1908 (in short ``CPC''). Sincethis application was followed by many miscellaneous applicationsincluding miscellaneous appeals to the lower appellate Court thedefendants, i.e,, the petitioners herein were so hard pressed thatthey could not file the written statement in the main suit in time.It was only on 01-08-2007 that the petitioners were able to filethe written statement along with an application for extension oft:ime for filing written statement. The learned trial Court afterhearing the parties and on an interpretation of Order VIII Rule 1CPC came to the conclusion that the petitioners had not beenable to show any cogent reason to justify extension of time andaccordingly, rejected the petition, It is against this order thatthe petitioners have come up before this Court in the presentpetition.

Since neither an appeal nor a revision under Section 115CPC lies against an order passed under Order VIII Rule 1 CPCthe petitioners have resorted to constitutional provisions andhave filed the present petition under Articles 226 and 227 of theConstitution of India.

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3'The main ground taken in the present petition whenit was initially filed is that miscellaneous matters which came upbetween the parties after the main suit was filed came in theway of filing of the written statement by the defendants withintime. The additional grounds that has been taken by thepetitioners is that because of the confusion created by themiscellaneous proceedings some of which culminated in

miscellaneous appeals in the lower appellate court manydocuments got misplaced. The misplaced documents and otherdocuments which were not in their possession were traced outonly few days before the application was moved. The furtherground taken is that the learned counsel for the petitioners hadto leave the station on account of the ailment of his wife.

The application was opposed by the plaintiffs-respondentsherein mainly on the ground that there being no provision in CPCto file such an application the application filed by the petitionersfor extension of time was contrary to mandatory provisions oflaw and as such, not maintainable.

4. At this stage, it may be relevant to mention that thegrounds as narrated above were the only grounds taken in thepresent petition when it was initially filed, However, in course ofthe proceedings before this court, the learned counsel for thepetitioners moved an application for amendment mentioning thatwhile preparing for motion for admission of the writ petition andalso on examination of the relevant documents certain factswhich were germane to the issue but had been inadvertently leftout at the time of preparing the writ petition came to the noticeof t:he petitioners. The facts so stated to have been left out arethat the learned trial Court had never passed any order directingthe issuance of summons upon the petitioners as required underthe provisions of Orders V and VIII of CPC so tha.t the limitationperiod of 90 days could be said to have commenced. As aconsequence, the petitioners were labouring under the mistaken vL- apprehension that the last date of filing the written statementwas 13-10-2006, that is to say 90 days from date of service ofnotice to show cause to the defendants in the miscellaneousmatter. Such mis-apprehension led them to believe that theywere not able to prepare and file the written statement withinthe time prescribed by Order VIII Rule 1 CPC and there has beena delay of 291 days in filing the written statement. It was thuscontended that since the learned trial Court had not yet passedany order directing issue of summons calling upon thedefendant:s to file written statement of their defence no date hasbeen set on and from which 90 days period could have beencomputed and as such, the written statement already filed bythe petitioners could not have been treated as time barred.

The amendment as sought for having been allowed afterhearing the parties, the above grounds were also incorporated inthe main petition and accordingly, recast writ petition was filed.The respondents chose not to file any counter-affidavit.

5. We have heard the learned counsel for both partiesat length.

6`The short point that falls for consideration is whethertime to file a written statement could be extended beyond 90days in view of the Order VIII Rule 1 CPC as it stands after thelatest amendment of 2002.

While it was the submission of the Mr. T. 8. Thapa,learned senior counsel for the petitioners that the petitioners had tr a

made out a strong case for extension of time, Mr. a. Sharma,learned senior counsel appearing for the respondents submittedthat the longest time that can be allowed in terms of Order VIIIRule 1 CPC was 90 days and as the period of 90 days hadalready elapsed by the time the present petition for extension oftime to file written statement was filed the same could not havebeen allowed.

8. As can be noticed from the foregoing narrat:ion, theadditional ground taken by the petitioners on the amendmentbeing allowed is that since no summons calling upon thepetitioners to file written statement has been issued there hasbeen no delay in filing the written statement. In other words, thewritten statement already filed is within time. Since we find itconvenient to take up this issue first we propose to refer to thesubmission made by Shri a. Sharma, learned senior counselappearing for the respondents in this regard at the first instance.The submission made by the learned senior counsel is to theeffect that where the defendants had already entered appearancein the proceedings issuance of a separate summons calling uponthe defendants to file written statement by particular date wasnot a requirement of law and as such, there was no irregularityon that account. The learned counsel in support of hissubmission relied on t:he decision of the Apex Court in SrJ. WathAgarwal vs. Santosh Kumar reported .in AIR 1981 All. 400wherein it has been held as follows:-

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``If the defendant party appears beforethe court after the registration of the suit, andhe is informed about the nature of the claimand the date fixed for reply thereto it must bedeemed that the defendant has waived theright to have a summons served on him.........,.......,..... In such a case if some date isfixed for filing the written statement and forhearing of the suit it would rather be tootechnical a view to take that service ofsummons in the ordinary course were still tobe insisted upon and to hold that furtherproceedings in the suit would take place onlythereafter. This is neither the purpose nor theway to look at various provisions of the CPC,"

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9`The law as laid down by the above decision havingnot been seriously disputed by the learned counsel for thepetitioners, we have no hesitation to hold that since thepetitioners had already entered appearanc'e in the present caseand were aware of the day to day proceedings a separate orderdirecting issue of summons upon the petitioners, i.e., thedefendants for filing of written statement was not called for.Accordingly, it must be observed on the basis of the decisioncited above that the order dated 08-09-2006 which was passedin presence of both parties fixing a next date for filing of thewritten statement by t:he defendants t:o file written statementwas sufficient compliance of the requirement of law. Thus, eventhough the petitioners had seriously pressed this issue, it is oflittle avail. However, it may be observed that the learnedcounsel for the petitioners stand on a firmer ground in respect ofthe ot:her plea that the Court has discretion to allow filing ofwritten statement after 90 days even under the amendedprovision of Order VIII Rule 1 CPC if sufficient cause is shown.not been seriously disputed by the learned counsel for thepetitioners, we have no hesitation to hold that since thepetitioners had already entered appearanc'e in the present caseand were aware of the day to day proceedings a separate orderdirecting issue of summons upon the petitioners, i.e., thedefendants for filing of written statement was not called for.Accordingly, it must be observed on the basis of the decisioncited above that the order dated 08-09-2006 which was passedin presence of both parties fixing a next date for filing of thewritten statement by t:he defendants t:o file written statementwas sufficient compliance of the requirement of law. Thus, eventhough the petitioners had seriously pressed this issue, it is oflittle avail. However, it may be observed that the learnedcounsel for the petitioners stand on a firmer ground in respect ofthe ot:her plea that the Court has discretion to allow filing ofwritten statement after 90 days even under the amendedprovision of Order VIII Rule 1 CPC if sufficient cause is shown.

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That it is so would be clear from our discussion that followshereinafter.

Mr. a. Sharma, learned senior counsel for the respondents relied on the following two decisions on the point:

Sukhdeo Rai vs. Ashok Kumar Rai and Ors.reported in AIR 2005 Gau. 37; and

A. M. Khaithan vs. M. Sheshappa and Ors.reported in AIR 2005 Kant. 23.

In Sukhdleo Ra/s case where written statement waseventually filed after expiry of the period of 90 days a learnedSingle Bench of the Gauhati High Court held that there was nopower or discretion left in the Court to condone the delay andtake the written statement on record, It was observed that theprovisions of Order VIII as amended by the Amendment Act2002 is particularly stringent and no discretion has been left tothe Court to extend the time for filing the written statementbeyond 90 days and that even extension of time beyond theinitial 30 days, if granted, is required t:o be supported by reasonsto be recorded jn writing. Similarly, in A. M. KAai.than`s casewhere the learned trial Court had rejected the petitioner'sapplication for leave to file written statement a Single Bench ofthe Karnataka High Court relying on a Division Bench decision ofthe same Court .in A. Sathyapal vs. Smt. Yasmin Banu Ansarireported in 2004 AIR -Kant HCR ]]08 held that the orderrejecting leave to file written statement was in conformity withthe law. In other words, the decision lays down that the time tofile written statement cannot be ext:ended beyond 90 days.

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10. There is no doubt that the above decisions lay downthat no time can be extended beyond 90 days for filing writtenstatement after 2002 amendment of CPC. However, in order toascertain and arrive at the correct position of law in this regard,we find it necessary to refer to the following decisions out of thenumber of decisions relied on by the learned counsel for therespondents.

±1, At the outset, we wish to make it clear t:hat it doesnot appear to us to be the law that in no circumstances can aCourt extend such time beyond 90 days even after the latestamendment of CPC in the year 2002. Indeed, one of us (Saikia,C.J. the then Judge of Gauhati High Court) had in Sub/-r KumarDey vs. Joya Dey @ Joya Mahajan reported -in 2006 (2)Gawhati- Law Ti-mes 298 had already expressed the view andheld relying on Ka/./ash vs. Nanhku andl Ors. reported inf2005J 4 SCC 480 that the provisions of Order VIII Rule 1C.P.C. were directory in character and not mandatory and thatthough an obligation was cast on the defendant/opposite partyto file a written statement within the time prescribed theprovisions did not deal with nor specifically took away the powerof the Court to accept a written statement on record though filedbeyond the time as provided under Order VIII, Rule 1 C.P.C.

]2. Order VIII Rule 1 CPC as it stands now reads asunder:- ``1. Written statement.-The defendantshall, within thirty days from the date of -H±

service of summons on him, present a writtenstatement of his defence:

Provided that where the defendant failsto file the written statement within the saidperiod of thirty days, he shall be allowed to filethe same on such other day, as may bespecified by the Court, for reasons to berecorded in writing, but which shall not be laterthan ninety days from the date of service ofsummons.''

13. The scope and ambit of the above provision of lawhas been examined by the Apex Court in the above /(a;fash'scase (supra) and .in Salem Advocate Bar Association, T.N. vs.union of India reported .in (2005) 6 SCC 344 ar\d other morerecent decisions.

In the above, Xa#ash's case (supra), the three JudgeBlench of the Apex Court while interpreting the provisions ofOrder VIII Rule 1 CPC held as follows:- "The extension of time sought for bydefendant from court, whether 30 or 90 days,Should not be granted as a matter of routineand merely for the asking, and especially whenperiod of 90 days has expired. Extension oftime beyond the limits laid down in Or, 8 Rule¥ETE +EE=H E|EEEHifEE EIfEHEHEEEEEifHEillEEEE=HHFT]=assiqned bv defendant and also recorded inwriting by court to its satisfaction, howsoeverbrief thev miaht be. Court concerned had tospell out that departure from time scheduleprescribed in Or. 8 Rule 1 and proviso thereto,as amended, was being allowed becausecircumstances were exceptional, occasioned byreasons beyond control of defendant and §!±£!]exception was reciuired in the interest ofjustice, and grave injustice would beoccasioned if time were not extended."

[emphasis supplied]

In Sa/em Adrvocare Bar Assoc/-afi-on, it has been clearly held that the Order VIII Rule 1 CPC including the proviso are not dr ~-,J1

mandatory but directory. Accordingly, it has been held that thedelay can be condoned and a written statement can be acceptedeven after the expiry of 90 days from the date of service ofsummons in exceptional hard cases.

]4. Referring to and agreeing with the above decisions, aDivision Bench of the Apex Court in Ran; Kusum fsmrj vs.Kanchan Devi (Smt) and Ors. reported .in (2005) 6 SCC 705observed that the provision does not deal with the power of thecourt and also does not specifically take away the power of thecourt to take the written statement on record though filedbeyond the time as provided for. Further, it was observed thatthe nature of the provision contained in Order 8 Rule 1 isprocedural. It is not a part of the substantive law. clarifyingthe legal position further the Apex Court in paragraph 10 of thejudgment also observed as follows:-

"10. All the mules of procedure are thehandmaid of justice. The language employedby the draftsman of processual law may beliberal or stringent, but the fact remains thatthe object of prescribing procedure is toadvartce the cause of justice. In an adversarialsvstem, no Dartv should ordinarilv be deniedthe oDDortunitv of DarticiDatina in the Drocessof iustice disoensation. Unless comDelled bvexDress and sDecific lanauaae of the statute,the Drovisions of CPC or anv other Droceduralenactment ouaht not to be construed in amanner which would leave the court helDlessto meet extraordinarv situations in the ends ofj ustice. " [emphasls supplied]

I.n Shaikh Salim Haji Abdul khayumsab vs. Kumar and Ors, reported in (2006j I SCC 46 also the Apex Court held thatOrder VIII Rule 1 CPC and the proviso thereto as amended by H=

2002 Amendment do not take away the power of the Court totake written statement on record though filed beyond 90 days.The Court, however, observed that any departure from theprovisions contained in Order VIII Rule 1 has to be forsatisfactory reason only. The Court in paragraph 15 of thejudgment observed as follows:- ``15. It is also to be noted that thoughthe power of the court under the provisoappended to Rule 1 of Order 8 is circumscribedby the words ``shall not be later than ninetydays" but the consequences flowing from non-extension of time are not specifically providedfor though they may be read by necessaryimplication. Merely, because a provision of lawEgEEEEEEE ET`F [EHid`EE. EifEjEEEBIT'E EE TEHif'Hiifj]EEmEL[if[E:,EHH]T±if+EEEHunEEEEE]E#E]E]]E[EE]jEET]:±[n]ItgTifiprovision came to be enacted, hold the sameg=?:,,directory though worded in the negative[emphasis slJpplied]

The following observation made by Hon'ble Shri Justice P.K. Balasubramanyan (as his Lordship then was) in his Lordship'sconcurring judgment rendered in A. W. Jadi- & Brofbers andOrs. vs. Subhashchandra reported .in (2007) 6 SCC 420emphasises the same position of law:- \

"15 ................... It is, therefore,necessary to emphasise that the grant ofextension of time beyond 30 days is notautomatic, that it should be exercised withcaution and for adequate reasons and that anextension of time beyond 90 days of tLngEETHEEEE[m=mEEiEigREEi+HEfflifEEifT+ETE[E=EE]ifEE!if:Hfl,E±HEEE[g[antl.nq su_ch extenslon_, the court belngconscious of the fact that even the power ofthe court for extension inhering in Section 148

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The above decisions make it clear beyond any doubt thatextension of time to file written statement beyond 90 days canbe granted the only condition being that it should be forsatisfactory and ].ustifiable reasons. In view of this, we have nohesitation to hold that time to file written statement can beextended beyond 90 days for satisfactory and justifiable reasons.

The next question that needs to be answered is whetherthe cause shown by the petitioners in support of the applicationfor condonation of delay is satisfactory and justifiable.

As already narrated above, the filing of the suit in questionwas followed by miscellaneous applications and the petitionersafter entering appearance were fully engaged in contesting themiscellaneous proceedings including the appeal arising out of it.Thus, there were not only miscellaneous proceedings but therewere also miscellaneous appeals arising out of the miscellaneousmatters which the defendants were required to contest in thelower appellate court. To add to it, it is also noticed that in theappeal that was filed before the lower appellate court against theinjunction order, the records of the court were called for by theappellate court.and remained with the appellate court unt:il thematter was finally disposed of.

]5. In a similar case in which the defendants wereprevented from filing a written statement in time on account ofintervening miscellaneous applications and the appeals that =+

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arose out of the miscellaneous matters, the Apex Court has heldthat the case was an exceptional one which constituted sufficientcause for condoning the delay in filing the written statement [seeZolba vs. Kesl.ao & Ors. reported .in AIR 2008 SC 2099|. Inthe facts and circumstances of the case the Apex Court held thatthe High Court as well as the trial Court had erred in rejectingthe application for condoning the delay in filing the writtenstatement.

Keeping in view the above guidelines as well as theprinciple that no party should ordinarily be denied theopportunity to participate in the process of justice dispensationin an adversarial system which we follow in our country asenunciated by the Apex Court in Rani-Kusun's case referred toabove, we see no reason as to why the reasons given by thepetitioners in the present case should not be taken assatisfactory and sufficient for the purpose of condonation of thedelay in filing the written statement. In the facts andcircumstances of the case, the learned trial Court ought to havecondoned the delay under such condition as may be permissibleunder the law. In our considered view such an approach wouldcertainly have served the ends of I.ustice well.

]6. Accordingly, in the facts and circumstances of thecase and in view of the reasoning and observations made above,we have no hesitation to hold that the learned trial court haderred in rejecting the application for condonation of delay in IT

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filing the written statement and as such, interference of thisCourt is called for.

]7. Accordingly, the impugned order dated 01-05-2008is hereby quashed and set aside, The learned trial court isdirected to take the written statement already filed by thepetitioners on record. Thereafter, the learned trial Court shallproceed to hear the matter according to law and shall make allefforts to dispose of the matter as early as possible.

]8. In the result, the writ petition stands allowed.

]9. However, keeping in view the peculiar facts andcircumstances of the case, we direct the petitioners to pay a costof Rs.5,000/-(Rupees five thousand) to the respondents.

20. A copy of the judgment be sent to the court belowfor information and compliance.

2]. The lower court records may be returned forthwith.

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( Justice A. H. Saikia )Chief Justice07-12-2009

--I;-.----( Justice A. P. Subba )Judge07-12-2009