D.B. Bhosale, J.
1. Heard the learned counsel for the Parties.
2. Rule. Returnable forthwith. The learned counsel appearing for the respondents in all the writ petitions, waive service. Heard finally by the consent of the learned counsel for the parties.
3. This batch of writ petitions basically challenges the orders passed by the trial Court either allowing the defendant to file the written statement after the period prescribed under Order 8, Rule 1 of the Code of Civil Procedure, 1908 (for short, 'the CPC') or disallowing the defendant from doing so on the ground that it was not presented within such period. The question, therefore, that falls for my consideration in these writ petitions is whether after the 2002 amendment to Order 8, Rule 1 of the Civil Procedure Code upon expiry of a period of 90 days from the service of the writ of summons upon the defendant, the defendant is wholly and absolutely barred from filing his written statement. In other words, whether the defendant cannot, under any circumstances, be permitted for file the written statement after expiry of the period of 90 days from the date of service of the writ of summons as prescribed by Order 8, Rule 1. The Code of Civil Procedure (Amendment) Act, 2002 will be hereinafter referred to as the 'recent Amendment' while Code of Civil Procedure (Amendment) Act, 1999 will be referred to as '1999 Amendment', for the sake of brevity and convenience. Since no factual adjudication is involved in any of the writ petitions, a brief reference to the facts of the first two writ petitions, one filed by the plaintiff and other by the defendant, will suffice.
4. In Writ Petition No. 2169 of 2003, the petitioner-plaintiff instituted a Special Civil Suit No. 49 of 2002 against the respondent-defendant. The trial Court issued summons to the defendant on 23-9-2002. It was re-issued on 30-10-2002 since the earlier summons was allegedly refused by the defendant. On 7-11-2002, the summons was duly served upon the defendant. Until 5-12-2002 the defendant did not appear as a result of which the Court passed an order below Exhibit-1 'Suit to proceed ex parte against the defendant'. On 9-1-2003, for the first time, the defendant appeared through his advocate and applied for time to file a written statement. Along with the application neither a written statement nor an application to set aside the 'No W.S.' Order was filed. On 20-1-2003, the defendant filed Exhibit-13 application for setting aside the 'No W.S.' order. On 10-2-2003, the trial Court passed the order below Exhibit-13, impugned in the present petition, and allowed the defendant to file a written statement subject to costs of Rs. 500/-. According to the plaintiff, the order passed allowing the defendant to file the written statement was wrong and illegal inasmuch as it was passed in contravention of the provisions of Order 8, Rule 1, Civil Procedure Code. It was also contended that the application was allowed without setting aside the 'No W.S.' order.
5. In Writ Petition No. 7340 of 2003 filed by the petitioners-defendants, the suit was instituted on 28-9-2003. The summons was issued on 8-10-2001 and it was admittedly served on the defendants. On 21-3-2002, the trial Court passed 'No Say' order on the interim application and 'No W.S.' in the suit. On 21-3-2002, the advocate for the petitioners applied for setting aside 'No Say' order and omitted to apply to have 'No W.S.' Order set aside. On 1-7-2002, the amendment to Order 8, Rule 1 of the Civil Procedure Code imposing a time limit for filing W.S. Came into force. On 19-7-2002, the Court passed the order dated 21-3-2002 on the defendants' application setting aside 'No Say' order on payment of costs of Rs. 50/-. On 23-6-2002, the petitioners appointed a new Advocate and applied to set aside 'No W.S.' order dated 28-3-2002. On 6-8-2003, both the applications of the petitioners were disposed of by a separate order. 'No Say' order was set aside on payment of cost of Rs. 75/- and as far as application for setting aside 'No W.S.' order is concerned, it was dismissed on the ground that it was not filed within 90 days from the date when the amendment to Order 8, Rule 1 came into force. It is this order passed on 8-8-2003 has been impugned in this petition.
6. Since the question involved in the petitions is a substantial question of law of general importance, I have solicited the assistance of the learned counsel appearing for the parties in all the petitions. I have carefully gone through the petitions and annextures thereto as also the judgments relied upon by the learned counsel appearing for the parties.
7. Mr. Bandiwadekar, learned counsel for the petitioner in Writ Petition No. 2169 of 2003, submitted that under the recent amended provisions of Order 8, Rule 1, it is mandatory for the defendant to file a written statement within 30 days from the date of service of summons, however, for the reasons to be recorded in writing, the Court can extend the time of 30 days, but it shall not be beyond 90 days. He invited my attention to the Statement of Objects and Reasons (for short, 'the SOR') and submitted that the recent amendment to the Civil Procedure Code is brought with an object to cutting short the delays at various levels in disposal of civil cases and, therefore, keeping the SOR in view for bringing the recent amendment, it is clear that the provisions of Order 8, Rule 1 are mandatory and not directory. He further submitted that by applying the tests, whether provisions are directory or mandatory, as enunciated in Sharif-ud-din v. Abdul Gani case, the provisions of Order 8, Rule 1, Civil Procedure Code are mandatory and are required to be strictly adhered to and diluting of the said provisions will defeat the very object for which the provisions were amended. Therefore, according to Mr. Bandiwadekar, the Court has no power to permit the defendant to file a written statement after expiry of 90 days. In support of his submission, he placed heavy reliance upon the judgment of the Division Bench of this Court in Indium India Telecom Ltd. v. Motorola Inc and Anr., Appeal No. 608 of 2003 in Suit No. 3092 of 2002, (since reported in delivered on 17-10-2003. According to Mr. Bandiwadekar, the Division Bench, while construing the provisions of Order 8, Rule 1 has categorically held that the trial Court has no discretion to extend the time to file written statement beyond 90 days. The Division Bench was considering the issue in the light of the recent amendment and while doing so it has relied upon the judgment of the Supreme Court in Dr. J. J. Merchant and Ors. v. Srinath Chaturvedi, . Mr. Bandiwadekar, submitted that the three Hon'ble Judges of the Supreme Court have considered the provisions of Section 13 of the Consumer Protection Act, 1986 and while doing so their Lordships have held that for having speedy trial, the legislative mandate of not giving time of more than 45 days in submitting the written statement, requires to be adhered to. The Supreme Court specifically made reference to the provisions of Order 8 Rule 1 of the Civil Procedure Code and held that under this provision also there is a legislative mandate and it requires to be strictly adhered to. He further submitted that for extending the period for filing written statement beyond the period prescribed under Order 8, Rule 1, recourse cannot be taken to the provisions of Sections 148 and 151 of the Civil Procedure Code since inherent powers, under that provision, cannot be taken recourse to, to override express provisions. In support of this proposition, he placed reliance upon the judgments of the Apex Court in Padam Son v. State of U.P, , Monoharlal Chopra, and Arjunsingh . Mr. Bandiwadekar also invited my attention to some judgments of the Supreme Court and High Courts in support of his submission to which I will make reference at an appropriate stage.
8. Mr. Pankaj Thatte, learned counsel for the petitioner-plaintiff in Writ Petition No. 7247 of 2003, while adopting the submissions made by Mr. Bandiwadekar, learned counsel, further submitted that the trial Court has no power under any of the provisions of the Civil Procedure Code including powers vested under Sections 148 and 151 to extend the time to file a written statement prescribed under the provisions of Order 8, Rule 1. Mr. N. Y. Gupte, learned counsel for the respondent-plaintiff in Writ Petition No. 6627 of 2003, adopted the submissions made by Mr. Bandiwadekar and opposed the prayer made in the, writ petition wherein the order allowing filing of the written statement beyond the period of 90 days has been impugned. Mr. Madhav Jamdar, learned counsel for the petitioner-plaintiff in writ Petition No. 8295 of 2003, adopted the submissions made by Mr. Bandiwadekar. In Writ Petition No. 7340 of 2003 wherein the order of the trial Court extending time to file the written statement has been impugned, the respondents-plaintiffs chose not to appear, though served.
9. On the other hand, Mr. Kumbhakoni, learned counsel for the respondent-defendant in Writ Petition No. 2169 of 2003, submitted that the intention of the legislature in introducing the amended provisions of Order 8, Rule 1 is not to penalise the defendant who does not submit his defence within the stipulated period or to take away the discretion that was vested in the Court prior to the amendment. In his submission, procedural rules are normally not to be considered mandatory in nature. Procedure is something designed to facilitate justice. The procedural code is not a penal enactment for punishment and penalties. Penal consequences for not putting in the defence in time are not provided in the provisions in issue. According to Mr. Kumbhakoni, our laws of procedure are grounded on principles of natural justice and, therefore, proceedings that affect the lives and properties of litigants cannot be proceeded with in the absence of the written statement. In support of his submission, he placed reliance upon the judgment of the Supreme Court in Topline Shoe Ltd. v. Corporation Bank, and in Sangram Singh v. Election Tribunal Kotah and Anr., , In short, according to Mr. Kumbhakoni, the provisions of Order 8, Rule 1 are directory and it is open to the Court to use its discretion for extending the period in cases where the defendant could not file his written statement for reasons beyond his control. Insofar as the judgment of the Supreme Court in the case of Dr. J. J. Merchant (supra) is concerned, he submitted that the observations made by the Supreme Court in that judgment cannot be considered as 'ratio' and at the highest it could be termed as 'obiter'. According to Mr. Kumbhakoni, the Supreme Court in the case of Dr. J. J. Merchant was not considering the issue that is involved in the present writ petitions. He further submitted that the trial Court has power to exercise judicial discretion to permit the defendant to file a written statement even beyond the period of 90 days as stipulated under Order 8, Rule 1 Mr. Kumbhakoni placed reliance upon the judgments of other High Courts in support of his submission to which I will make reference at an appropriate stage.
10. Mr. Walawalkar, learned counsel for the petitioners-defendants in Writ Petition No. 7340 of 2000 while agreeing with the submissions of Mr. Kumbhakoni that the provisions of Order 8, Rule 1 are directory and not mandatory, submitted that for the purposes of interpretation of a statute, the entire statute has to be read in its entirety. The purport and object of the Act must be given its full effect. He, therefore, submitted that the provisions of Rule 9 and 10 of Order 8 cannot be ignored totally while considering the powers of the Civil Court to allow the defendant to file his written statement beyond the period of 90 days as stipulated under Order 8, Rule 1. In support of his submission, he placed reliance upon the judgment of the Supreme Court in Indian Handicrafts Emporium and Ors. v. Union of India and Ors., . According to Mr. Walawalkar, Rule 9 of Order 8 empowers the Court in extra ordinary cases to use judicial discretion to permit the defendant to file a written statement within the outer span of 30 days from the date of passing the order for reasons to be recorded in writing. Insofar as Rule 10 of Order 8 is concerned, he submitted that the provisions of Rule 10 show that though the defendant is required to file a written statement within 30 days after receipt of summons and though the Court can extend time till 90 days, the Court is not divested of the power to give further time for filing a written statement. In his submission, the very fact that Rule 10 is reintroduced by the recent amendment by Parliament would show that Parliament never intended the Civil Court to pronounce judgment immediately after the failure on the part of the defendant to file a written statement within 90 days. Mr. Walawalkar placed reliance upon the judgments of the Supreme Court in State of Orissa v. Sudhansu Shekar Misra, and Ors. and Municipal Corporation of Delhi v. Gurnam Kaur, and submitted that the observations made by the Supreme Court in Dr. J. J, Merchant case cannot be said to declare the law since the issue involved in that writ petition was not the same which is involved in the present writ petitions. In short, Mr. Walawalkar submitted that the observations made by the Supreme Court in Dr. J. J. Merchant case were casual observations made on a point not calling for a decision and not argued before the Court. Mr. Walawalkar further submitted that on a combined reading of the provisions of Rule 1, Rule 9, Rule 10 of Order 8 and Order 9, Rule 7, a defendant can in a fit case, file his written statement even after the expiry of the period prescribed by Order 8, Rule 1. In support of his submission, he placed reliance upon several judgments of the Supreme Court and other High Courts to which reference will be made later.
11. Mr. R. S. Apte, learned counsel for the respondent-defendant in writ Petition No. 7247 of 2003, while adopting the submissions made by Mr. Kumbhakoni and Mr. Walawalkar, submitted that the object of the recent amendment is to cut short the delay in disposal of the cases and not to curtail the defence or to punish the defendant on his failure to file a written statement. He placed reliance upon the judgment of the Supreme Court in the State of Punjab and Anr. v. Shamla Murari and Anr., . Mr. Dinkar Rao, learned counsel for the petitioner-defendant in Writ Petition No. 6627 of 2003 adopted the submissions made by Mr. Kumbhakoni, Mr. Walawalkar, and Mr. Apte and submitted that the provisions of Order 8, Rule 1 are directory and not mandatory and, therefore, in a given case the Court has power to extend time beyond the period prescribed under Order 8, Rule 1.
12. After 1976, the Code of Civil Procedure was amended by 1999 amendment with a view to cutting short the delays at various levels. After its enactment, there was unrest in the community of lawyers at large, which made agitation and representations against its enforcement. The Bar Council of India, a statutory body constituted under the Advocates Act, was at the forefront in opposing certain amendments which, according to the Council, were unreasonable and asked the Government to relook certain provisions which could cause hardship to litigants. The Government had, therefore, considered the matter in all its aspect after consulting the Bar Council of India and others concerned and based on the outcome of deliberations, introduced the recent amendment which was brought into force on 1-7-2002. The entire exercise of amending the Civil Procedure Code in 1999 and 2002 was made with a view to cutting short delays at various levels.
13. A Code of procedure 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. There must be ever present in the mind the fact that our laws of procedure are grounded on the principles of natural justice which require that litigant 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 basic principle. The aforesaid enunciation in the judgment of the Supreme Court in Sangram Singh v. Election Tribunal, Kotah and Anr., is followed in several cases while interpreting the provisions of the Code of Civil procedure by the Supreme Court as well as various High Courts from time to time. The Supreme Court in Indian Handicrafts Emporium and Ors. v. Union of India and Ors., , while interpreting the provisions of the statute, held that it is now well settled that for the purpose of interpretation of a statute, the entire statute has to be read in its entirety. The purport and object of the Act must be given full effect. The Supreme Court in Indian Handicrafts Emporium case did make the reference to the decision in High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat 2003 (4) SCC 412, In paragraph 104 of Indian Handicrafts Emporium case, the Supreme Court held thus :
'33. Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context; With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place'.
The Supreme Court in the State of Punjab and Haryana v. Shamlal Murari (supra), in paragraph 8, held thus --
'We must always remember that procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the hand-maid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, tho' procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But grammar apart, if the breach can be corrected without injury to a just disposal of the case. We should not enthrone a regulatory requirement into a dominant desideratum. After all, Courts are to do justice, not to wreck this end product on technicalities. Viewed in this perspective, even what is regarded as mandatory traditionally may, perhaps, have to be moderated into wholesome directions to be complied with in time or in extended time.'
It is thus clear that a statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. It has to be looked at in the context of its enactment with the glasses of the statute-maker. No part of the statute or no word of the statute can be construed in isolation. Keeping the aforestated enunciation in view, I would now like to proceed to consider the question involved in the present writ petitions.
14. It would be appropriate to first deal with the submissions of the learned counsel for the plaintiffs, that the question involved in this batch of writ petitions is squarely covered by the judgment of the Supreme Court in the case of Dr. J. J. Merchant (supra). The Supreme Court in Dr. J. J. Merchant case which was decided on 12-8-2002, was dealing with the appeal wherein the appellant-Doctors had prayed that the complaint filed for alleged medical negligence be either dismissed as, according to them, complicated questions of law and facts arise which can best be decided by the Civil Court or in the alternative that the proceedings be stayed during the pendency of criminal prosecution pending against them in the criminal Court at Mumbai. In the course of the judgment the Supreme Court addressed three questions ; firstly, whether delay in disposal of cases by the Consumer forum or Commission would be a ground for directing the complainant to approach the Civil Court?. Secondly, when a case involves complicated question of facts for which experts including doctors have to be examined and their cross-examinations may be necessary and, therefore also, the National Commission ought to have directed the complainant to approach the Civil Court. And thirdly, that such complicated questions of facts cannot be decided in summary proceedings. While, addressing the aforestated questions formulated in the course of the judgment, the Supreme Court referred to the procedure prescribed under the Consumer Protection Act for disposal of complaints. While doing so, specific reference was made to Section 13 which indubitably is similar to that of the provisions of Order 8, Rule 1. In the judgment, the Supreme Court made reference to Order 8, Rule 1, and in paragraphs 14 and 15 thereof held thus :--
'14. For this purpose, even Parliament has amended Order 8, Rule 1 of the Code of Civil Procedure, which reads thus :
'1. Written Statement-- The defendant shall, within thirty days from the date of service of summons on him, present a written, statement of his defence ;
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.'
'15. Under this Rule also, there is a legislative mandate that written statement of defence is to be filed within 30 days. However, if there is a failure to file such written statement within the stipulated time, the Court can at the most extend further period of 60 days and no more. Under the Act, the legislative intent is not to give 90 days of time but only maximum 45 days for filing the version by the opposite party. Therefore, the aforesaid mandate is required to be strictly adhered to'.
15. On the other hand, the learned counsel for the defendants have placed heavy reliance upon the judgment of the Supreme Court in Topline Shoes Ltd. (supra) to contend that the provisions of Order 8 Rule 1 are directory and not mandatory in nature. The Supreme Court in Topline Shoes Ltd. case (supra), while dealing with the appeal under the provisions of the Consumer Protection Act, 1986, formulated the following question for determination, 'The short point in controversy is, as to whether or not the State Consumer Disputes Redressal Commission, could grant time to the respondent to file his reply, beyond a total period of 45 days, in view of Section 13(2)(a) of the Consumer Protection Act, 1986'. In that judgment, the Supreme Court after considering the Statement of Objects and Reasons, in paragraph 8 held thus :--
'Thus the intention to provide a time-frame to file reply, is really meant to expedite the hearing of such matters and to avoid unnecessary adjournments to linger on the proceedings on the pretext of filing reply. The provision, however, as framed, does not indicate that it is mandatory in nature. In case the extended time exceeds 15 days, no penal consequences are prescribed therefor. The period of extension of time 'not exceeding 15 days' does not prescribe any time of period of limitation. The provision appears to be directory in nature, which the consumer forums are ordinarily supposed to apply in the proceedings before them. We do not find force in the submission made by the appellant-in-person, that in no event, whatsoever, the reply of the respondent could be taken on record beyond the period of 45 days. The provision is more by way of procedure to achieve the object of speedy disposal of such disputes'.
The Supreme Court also considered the decision in Sangramsingh v. Election Tribunal, Kotah and Anr., and in paragraphs 11 and 12 of the judgment in Topline Shoes Ltd. held thus :
'11. We have already noticed that the provision as contained under Clause (a) of Sub-section (2) of Section 13 is procedural in nature. It is, also clear that with a view to achieve the object of the enactment, that there may be speedy disposal of such cases, that it has been provided that reply is to be filed within 30 days and the extension of time may not exceed 15 days. This provision envisages that proceedings may not be prolonged for a very long time without the opposite party having filed his reply. No penal consequences have however been provided in case extension of time exceeds 15 days. Therefore, it could not be said that any substantive right accrued in favour of the appellant or there was any kind of bar of limitation in filing of the reply within extended time though beyond 45 days in all. The reply is not necessarily to be rejected. All facts and circumstances of the case must be taken into account. The Statement of Objects and Reasons of the Act also provides that the principles of natural justice have also to be kept in mind'.
12. .......................... The power to extend time under Clause (a) is with a rider that the extension may not exceed 15 days. We have, however, already held that the provision saying that extended time may not exceed 15 days is directory in nature. It does not mean that orders extending the time to file reply may be passed repeatedly unmindful of an totally ignoring the provision that the extension may not exceed 15 days. This provision has always to be kept in mind while passing an order extending the time to file a reply to the petition. It is another matter, as we have found that in case time is extended exceeding 15 days, it may not be a kind of illegality which may deny or deprive the respondent to file his reply within the time granted by the Forum/Commission'.
16. The learned counsel appearing for the parties in this batch of writ petitions placed heavy reliance upon the judgments of the Supreme Court in Dr. J. J. Merchant case and in Topline Shoes Ltd. case. Topline Shoes Ltd. case was decided by the two Hon'ble Judges of the Supreme Court on 8-7-2002. The similarity apparent in these two cases is that in both the cases the Supreme Court was dealing with the provisions of the Consumer Protection Act, 1986. However, the difference was this that in Dr. J. J. Merchant case the issue involved was not the one which was dealt with by the Supreme Court in the case of Topline Shoes Ltd. In view of this, it will have to be considered whether the observations made by the Supreme Court in Dr. J. J. Merchant case will come in the way of interpreting the provisions of Order 8, Rule 1.
17. The Supreme Court in State of Orissa v. Sudhanshu Shekhar Misra and Ors., observed that a decision is only an authority for what it actually decides. What is the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. While making such observations, reference was also made to what the Earl of Halsbary L.C. said in Quinn v. Leathern (1901) AC 495 to the following passage.
'Now before discussing the case of Alien v. Flood (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable, to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.'
In Municipal Corporation of Delhi v. Gurnam Kaur, , the Supreme Court observed that 'Quotability as 'law' applies to the principle of a case, its ratio decidendi. The only thing in a Judge's decision binding as an authority upon a subsequent judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and not authoritative. Pronouncements of law, which are not part of the ratio are classed as obiter dicta and are not authoritative, if it was delivered without argument, without reference to the relevant provisions of the Act' as held in paragraph 11 thereof. The Full Bench of this Court in Kamleshkumar I. Patel v. Union of India and Ors. , while considering a similar situation has observed that 'obiter dicta' would be binding if there is a clear enunciation of law though such declaration is not necessary for disposal of case. In yet another case, in Smt. Somawati and Ors. v. State of Punjab, , the Supreme Court while considering the binding effect of the precedent, in paragraph 22 thereof observed that the binding effect of the decision does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided. In T. Govidaraja Mudliar v. State of Tamil Nadu, , the Supreme Court reiterated the enunciation in the case of Smt. Somawati and Ors. The Supreme Court in the State of U.P. v. Ramchandra Trivedi, was considering the issue of binding nature of the conflicting views of the Supreme Court and the principle to be followed by the High Courts. In paragraph 22 of the Judgment, the Supreme Court held thus :
'It is also to be borne in mind that even in cases where a High Court finds any conflict between the views expressed by larger and smaller benches of this Court, it cannot disregard or skirt the views expressed by the larger benches. The proper course for a High Court in such a case, as observed by this Court in Union of India v. K.S. Subramaniam (Civil appeal No. 212 of 1975, decided on July 30, 1976) to which one of us was a party, is to try to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law is followed by this Court itself.'
This Court while considering almost similar situation in Anant Narayan Naik v. State of Maharashtra, held that the High Court cannot ignore the Supreme Court decision on the ground that certain legal provisions were not brought to its notice. In yet another decision in Mohandas Issardas v. A.N. Sattanathan 1954 56 BLR 1154, after considering the decision in DEW v. United British Steamship Co. Ltd. (1928) 139 L.T. 628, this Court observed that if a Judge thinks it desirable to give an opinion on some point which is not necessary for the decision of the case, that of course has not the binding weight of the decision of the case and the reasons for the decision. In the same judgment, a reference was also made to the statement of the Law in Hulsbary Vol. XIX at page 251 'that it may be laid down as a general rule that that part of a decision of a Court of law is binding upon Courts of coordinate jurisdiction and inferior Courts which consists of the enunciation of the reasons or principle upon which the question before the Court has really been determined. This underlying principle which forms the law only authoritative element of a precedent is often termed the ratio decidendi. Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that is unnecessary for the purpose in hand usually termed dicta have no binding authority on another Court, though they may have some merely persuasive efficacy' . In the same judgment, this Court made the following observations which read thus:
'That observation is made in passing with reference to the general scheme of the Act and, in our opinion, it is entirely untenable to suggest, that this general observation constitutes an obiter dicta which is binding upon this Court on a question of the interpretation of Section 167, item (8): a question which never arose before the Supreme Court, which was never considered by the Supreme Court.'
The recent judgment of the Supreme Court in Director of Settlements A.P. and Ors. v. M.R. Apparao and Anr., wherein the Supreme Court has considered the binding element in the Supreme Courts decision, obiter dictum, ratio decidendi, duty of the High Courts to follow Supreme Court decisions etc, would have a great guiding effect in the facts of the present case and the issue involved in the matter. Paragraph 7 of the judgment reads thus:
'7. So far as the first question is concerned Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has declared 'law' it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An 'obiter dicta' as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a binding effect as a precedent, but it cannot be denied that it is of considerable weight. The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case. So far as constitutional matters are concerned, it is a practice of the Court not to make any pronouncement on points not directly raised for its decision. The decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court (see Ballabhadas Mathurdas Lakhani v. Municipal Committee, Malkapur, and AIR 1973 SC 794, When the Supreme Court decides a principle it would be the duty of the High Court or a subordinate Court to follow the decision of the Supreme Court. A judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity'.
18. Thus, the law is now well settled as to what a ratio decidendi is. An obiter dictum as distinguished from ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. The law, which will be binding under Article 141 of the Constitution of India extends to all observations of the points raised and decided by the Court in a given case. The only opinion, which would be binding, would be an opinion expressed on a question that arose for determination of a Supreme Court. 'Obiter dicta', therefore, as observed by the Supreme Court in State of Orissa v. Sudhansu Shekar Misra (supra), must be distinguished from casual observations made in a judgment on a point not calling for decision and not argued before the Court. The observation made in passing with reference to a general scheme of the Act would not constitute an obiter, dicta which is binding upon this Court on questions of interpretation. A question which never arose before the Supreme Court, which was never argued, which was never considered and which was never decided could not be, therefore, termed as 'obiter dicta'. In the present case, the Supreme Court in the case of Dr. J. J. Merchant was not considering the issue as to whether the Court has power to extend the time beyond the period prescribed under the provisions of Section 13 of the Consumer Protection Act or under Order 8, Rule I of the Civil Procedure Code for that matter. Arguments were not advanced in that case on the question involved in the present writ petition or the question that was involved in the case of Topline Shoes Ltd. (supra). Therefore, in my opinion, the observations made by the Apex Court in Dr. J. J. Merchant case will not come in my way for deciding the issue whether the trial Court has power to extend the time for filing written statement prescribed under Order 8, Rule 1.
19. The Apex Court in Topline Shoes Ltd. case was considering the very question which is raised in this batch of writ petitions and having considered the relevant provisions held that the provisions of Section 13(2)(a) of the Consumer Protection Act, 1986 are directory and not mandatory in nature. There is no dispute that the provisions of Section 13(2)(a) of the Consumer Protection Act and that of Order 8, Rule I of the Civil Procedure Code are similar. The Supreme Court in Topline Shoes Ltd. case, while dealing with the provisions of Section 13 of the Consumer Protection Act, has held 'that the said provisions are procedural in nature. The intention of the legislature is to provide a timeframe to file reply and expedite the hearing of such matters and to avoid unnecessary adjournments to linger on the proceedings on the pretext of filing reply'. Order 8, Rule 1 also envisages that proceedings may not be prolonged for a very long time without the defendant having filed his written statement. No penal consequences have, however, been provided in case extension of time exceeds 90 days. Therefore, in my opinion, it cannot be said that any substantive right stands accrued in favour of the plaintiff at the end of 90 days in view thereof, I have no hesitation in holding that the provisions of Order 8, Rule 1 are directory in nature it does not mean that the order extending time to file reply may be passed repeatedly unmindful of and totally ignoring the provisions that the extension may not exceed 90 days. This provision has always to be kept in mind while passing the order extending the time to file reply in the petition. The Court cannot do it arbitrarily. In other words, that can be done only in exceptional cases where the defendant can satisfy the Court that he could not file the written statement within the prescribed period as events were beyond his control. Since I have already taken a view on the matter based on the decision of the Supreme Court in Topline Shoes Ltd. case, it is not necessary for me to deal with the judgments relied upon by the learned counsel, on the question whether the provisions of Order 8, Rule 1 of the Civil Procedure Code are mandatory or directory in nature.
20. In Indium India Telecom Ltd. case (supra) the Division Bench of this Court was dealing with an appeal arising from the judgment of the learned Single Judge of this Court. The learned Single Judge, by exercising inherent powers, under Section 148 of the Civil Procedure Code, had extended time for filing written statement holding that Section 148 could be invoked to extend the period prescribed under Order 8, Rule 1, notwithstanding the proviso to Order 8, Rule 1 which curtails the power of the Court to extend the time only upto 90 days. A more fundamental issue before the Division Bench for consideration was as to whether the provisions of Order 8, Rule 1 would apply to suits on the original side or Original Side Rules continue to prevail by virtue of Section 129 of the Code of Civil Procedure. It was only in this backdrop that the Division Bench of this Court after considering the provisions of Section 148 and Order 8, Rule 1 held thus :
'In our opinion Section 148, which is repository of the general power to extend time cannot override the express limitation of Order 8, Rule 1 which has been amended by the amending Act and which has prescribed outer limit of 90 days beyond which written statement could not be entertained. Therefore, the learned Single Judge clearly erred in holding that the lime to file a written statement could be extended beyond the outer limit of 90 days by resorting to Section 148. Having said this, it would now have to be seen whether the provisions of Order 8 Rule 1 would apply to suits on the Original Side, or whether they would continue to be governed by Original Side Rules'.
The Division Bench proceeded to consider the principle issue whether the provisions of Order 8, Rule 1 would apply to suits on the Original Side. That issue has ultimately answered in the negative holding that Order 8, Rule 1 would not apply to suits on the Original Side and such suits on the Original Side will continue to be governed by the Original Side Rules. As a matter of fact, the learned counsel appearing in this batch of writ petitions, canvassing that time could be extended for filing written statement beyond the period of 90 days, fairly submitted that the parties were not invoking the provisions of Section 148 or Section 151 seeking extension of time beyond 90 days as prescribed under Order 8, Rule 1. In the circumstances, the Division Bench judgment will not interdict me to hold that the provisions of Order 8, Rule 1 are directory and not mandatory in nature.
21. This takes me to a consideration of the submission made by Mr. Walawalkar learned counsel, who endeavoured to deal with the question from a different angle. He gave different dimensions to the question involved in these writ petitions. In his submission, on a combined reading of the provisions of Rules 1, 9 and 10 of Order 8 and Rule 7 of Order 9, Civil Procedure Code, a defendant can in a fit case file his written statement even after expiry of the period prescribed by Order 8, Rule 1.
22. It would be advantageous in order to appreciate the submissions made by the learned counsel, to reproduce the provisions of Rules 1, 9, 10 of Order 8 and Rule 7 of Order 9 better. The provisions read thus :
'1. Written Statement. -- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence :
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing but which shall not be later than ninety days from the date of service of summons.''9. Subsequent pleadings. -- No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same'.
'10. Procedure when party fails to present written statement called for by Court. -- 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, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up'.
Order 9, Rule 7 :
'Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance - Where the Court, has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.'
23. Keeping in mind the canons of interpretation laid down by the Supreme Court, as noted above, 1 would like to analyse the provisions of Order 8, Rule 1 Civil Procedure Code. The text is noticed above. The context is to avoid wherever possible delays that can occur in a civil litigation. Delay must be avoided as far as possible but not at the cost of the cardinal principle of jurisprudence that no one shall be condemned unheard.
24. A plain reading of Rule 9 and Rule 10 of Order 8, Civil Procedure Code would show that notwithstanding anything contained in the provisions of Order 8, Rule 1, the wide discretion is vested in the trial Court. Rule 9 of Order 8 lays down, inter-alia, that no pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit. Under this rule, either party may, with leave of the Court, file a supplementary statement. No supplementary statement however can be filed after plaintiff's case is closed. Rule 9, therefore, invests the Court with the widest possible discretion and enables it to accept the written statement filed at subsequent stages upon such terms as the Court thinks fit. The only difference between the recent amendment and unamended provisions of Rule 9 is that no time limit was fixed in the old Code and discretion is given to the Court to fix the time for presenting the written statement. After the recent amendment, the Court may permit filing of a written statement or additional written statement from any of the parties but the Court must fix the outer limit of not more than 30 days for presenting the same. In other words, once the time is fixed by the Court and the written statement is not filed within that time, the defendant looses his right to file his written statement.
25. The Karnataka High Court while dealing with the provisions of Order 8, Rule 1, Rule 9 and Rule 10 in Shri Prasanna Parvathamba v. Shri M.S. Radhakrishna Dixit, , has observed that a harmonious reading of Rules 1, 9 and 10 of Order 8 would indicate that Rule 9 in extraordinary cases gives the Court judicial discretion to permit the defendant to file a written statement within the outer span of 30 days from the date of passing the order for reasons to be recorded in writing. Another learned Single Judge of the Karnataka High Court in Smt. Gupte v. Smt. Nagartha and Ors., , however has taken a different view that time cannot be extended under Order 8, Rule 9 as filing of a written statement is governed exclusively by Order 8 Rule 1. I am unable to agree with the view expressed in the judgment. Patna High Court in Kalipado Sharma v. Surendra Mohta, AIR 1975 Pat 34 while dealing with the provisions of Rule 9 of Order 8 held that it invests the Court with widest possible discretion and enable it to accept written statement filed subsequently after the settlement of issues upon such terms as the Court thinks fit.
26. A careful reading of Rules 1, 9 and 10 of Order 8 and Rule 7 of Order 9 would make the scheme in relation to the right of the defendant to file a written statement clear. Rule 1 confers right on the defendant to file a written statement within 30 days and having failed to file a written statement within the said period of 30 days, he is allowed to file written statement on such other day, as may be specified by the Court for the reasons to be recorded in writing, but which shall not be later than 90 days from the date of service of summons. In other words, the provisions of Order 8, Rule 1 provides that 'The defendant shall present a written statement'. Then, it provides 'he shall be allowed to file the same on such other day'. The time to do so has to be granted not as a matter of course but it has to be 'for reasons to be recorded in writing'. Then it is provided that it should not be more than 90 days from service.
27. Rule 9 of Order 8 provides that no pleading subsequent to the written statement of a defendant other than by way of defence to set off or counter claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require 'written statement' or 'additional written statement' from 'any of the parties' and fix a time of not more than 30 days for presenting the same. A careful reading of this provision shows that there is no time limit fixed for filing subsequent pleadings which also consists of written statement. The expression 'written statement' in the later part of the provision is not with reference to the plaintiff who has a right to file his written statement in the counter claim. The expression 'any of the parties', therefore, indicates that even defendant may at any time file written statement if so permitted by the Court within 30 days from the date of granting such permission. There is no time fixed for the Court to permit the defendant to file his written statement except that it should be filed within thirty days from the date of order allowing him to do so. It is thus clear that Rule 9 of Order 8 invests the Court with the widest possible discretion and enables it to accept a written statement at a later stage upon such terms as the Court thinks fit. In other words, the Court has got extraordinary power to examine in rare circumstances to require at any time a written or additional written statement to be filed in a case within the outer limit of 30 days to be fixed by the Court. A perusal of Rule 9, in my opinion, shows that it is not restricted to only the subsequent pleadings in relation to the set off or counter-claim. Rule 10 of Order 8 also makes reference to Rules 1 and 9 of Order 8. When such is the position, obviously, Rule 9 is not confined only to set off or counterclaim. Otherwise, there would not be a reference to Rules 1 and 9 in Rule 10 of Order 8.
28. Rule 10 of Order 8 was deleted in the 1999 Amendment. However, Parliament decided to reintroduce it by the recent amendment which, in my opinion, would show that Order 8, Rule 1 as amended recently cannot be interpreted in the strict terms. In other words, it cannot be said to be mandatory. Further to my mind, Rule 1, and Rule 10 of Order 8 together would show that a defendant is required to file a written statement within 30 days after receipt of summons and though the Court can extend the time till 90 days, the Court is not divested of the power to fix further time for filing written statement. The very fact that Rule 10 is re-introduced by the recent amendment by Parliament would show that Parliament never intended the Civil Court to pronounce the judgment immediately after failure on the part of the defendant to file a written statement within 90 days. The A.P. High Court in Nachipeddy Ramasawamy v. P. Buchi Reddy, has also taken the similar view holding that the Court has power to condone delay and extend period beyond 90 days, if the written statement is not filed within the period prescribed under Order 8, Rule 1.
29. Rule 7, Order 9 confers power on the trial Court that if at an adjourned hearing, where the Court has, for non-appearance of a defendant, adjourned the hearing of the suit ex parte against him, the defendant appears and assigns good cause for his 'previous appearance' he can be heard in answer to the suit, as if he had appeared on the day fixed for his appearance, 'upon such terms as the Court directs as to costs or otherwise'. This cannot be read to mean that he cannot be allowed to appear at all if he does not show good cause. All that it means is that he cannot be relegated to the position he would have occupied if he had appeared. Rule 7, Order 9 covers the case of the defendant who did not appear at all on the first hearing date and the suit was adjourned after declaring him ex parte as also the defendant who absented after filing written statement. Thus, it invests the Court with the widest possible 'discretion and enables it to accept a written statement, even where the defendant, who has not appeared previously and the suit has been adjourned for ex parte hearing against him, appears on the day of adjourned hearing and assigns good cause for previous non-appearance, 'upon such terms as the Court directs as to costs or otherwise'.
30. Rule 10 of Order 8 provides consequence of non-filing of written statement as required under Rule 1 or Rule 9 and further empowers the Court to make such order in relation to the suit as it thinks fit. The Supreme Court in Sangram Singh case (supra) while dealing with Rule 10 of Order 8 and Order 9, Rule 7 in paragraph 33 made the following observations :--
'33. We have seen that if the defendant does not appear at the first hearing, the Court can proceed 'ex parte', which means that it can proceed without a written statement; and Order 9, Rule 7 makes it clear that unless good cause is shown the defendant cannot be relegated to the position that he would have occupied if he had appeared. That means that he cannot put in a written statement unless he is allowed to do so, and if the case is one in which the Court considers a written statement should have been put in the consequences entailed by Order 8, Rule 10 must be suffered.
What those consequences should be in a given case is for the Court in the exercise of its judicial discretion, to determine. No hard and fast rule can be laid down. In some cases an order awarding costs to the plaintiff would meet the ends of justice; an adjournment can be granted or a written statement can be considered on the spot and issues framed. In other cases, the ends of justice may call for more drastic action.'
The Supreme Court had an occasion to deal with the provisions of Rule 10 of Order 8 in Balraj Tanreja and Anr. v. Sunil Madan and Anr., 1999 (8) SCC 596. While dealing with this provision, in paragraph 14 and 17 of the report the Supreme Court held thus :--
'14. This rule, namely Rule 10, was also amended by the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976). Prior to its amendment, it was held in a number of decisions that the rule can be invoked only in those situations where the Couit has required the defendant to file the written statement in terms of Rule 9 of Order 8. A few other High Courts had taken the view that this rule would be applicable even to those cases where a written statement was required to be filed under Order 8, Rule 1, Civil Procedure Code. The conflict of decisions has been set at rest by providing specifically under this rule that where a party from whom a written statement is required either under Rule 1 or Rule 9 of Order 8 fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit. Rule 10 thus governs both the situations where a written statement is required under Rule 1 of Order 8 as also where it has been demanded under Rule 9. In both the situations, if the written statement has not been filed by the defendant, it will be open to the Court to pronounce judgment against him or make such order in relation to the suit as it thinks fit- It is to be noticed that if the written statement is not filed, the Court is required to pronounce judgment against the defendant. The words 'against him' are to be found in Rule 10 of Order 8 which obviously means that the judgment will be pronounced against the defendant. This rule also gives a discretion either to pronounce judgment against the defendant or 'make such order in relation to the suit as it thinks fit'. These words are of immense significance, inasmuch as they give a discretion to the Court, not to pronounce judgment against the defendant and instead pass such order as it may think fit in relation to the suit'.
17. This decision was followed by the J & K High Court in Chuni Lal Chowdhry v. Bank of Baroda in which it was laid down as under : 'On the authority of these observations, Rule 10 can be taken to relate to Rule 1 of Order 8 and on the defendant's failure to file written statement of his defence, when so required, the Court has the power either to pronounce the judgment against him or make such order in relation to the suit as it thinks fit depending upon whether the suit was for the final disposal or for the settlement of the issues only. In the latter case, the Court has ample discretion to grant more time for filing the written statement or to proceed to hearing of the suit without such written statement. The discretion cannot, however, be exercised arbitrarily. In determining which course to adopt, the Court will always be guided by the facts and circumstances of each case. Where the Court decides to proceed to hearing of the suit without the written statement, that would not debar the defendant from taking part in further proceedings of the case. His participation would, however, be hedged in by several limitations. He will not be able either to cross-examine the plaintiff's witnesses or to produce his own evidence with regard to any questions of fact which he could have pleaded in the written statement. He will, however, be competent to cross-examine the plaintiff's witness in order to demolish their version of the plaintiff's case.'
It is thus clear that under Rule 10 of Order 8 on the defendant's failure to file written statement of his defence, when so required, the Court has the power either to pronounce the judgment against him or make such other order in relation to the suit as it thinks fit depending upon whether the suit was for the final disposal or for the settlement of the issues only. In the later case, the Court has ample discretion to grant more time for filing the written statement or to proceed to hearing of the suit without such written statement. Order 9, Rule 7 does not tie the hands of the Court from passing an appropriate order under Rule 10 of Order 8. The Supreme Court in Balaraj Tanreja's case (supra) has further made it clear that Rule 10 governs both situations where the written statement is required under Rule 1 of Order 8 as also where it has been demanded under Rule 9. In both the situations if a written statement has not been filed by the defendant, it will be open for the Court to pronounce the judgment against him or make such order in relation to the suit as it thinks fit under Rule 10, Order 8. It is to be noticed that if a written statement is not filed, the Court is required to pronounce the judgment against him. The words 'against him' are to be found in Rule 10 of Order 8 which, obviously means that the judgment will be pronounced against the defendant. This also gives discretion either to pronounce the judgment or 'make such order in relation to the suit as it thinks fit'. These words are of immense significance inasmuch as they give discretion to the Court not to pronounce the judgment against the defendant and still pass such order as it may think fit in relation to the suit. In other words, it is open for the. Court to allow the defendant to file a written statement even at that stage. These provisions cannot be overlooked while deciding the question involved in the present writ petitions. The Supreme Court in India Handicraft Emporium case (supra) has made it absolutely clear that the intention of the legislature or the purport of the statute depends on the text and the context. They are the basis of the interpretation. One may well say that if the text is texture, the context is what gives the colour. Neither can be ignored. Both are important. Statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. It is, therefore, necessary to examine every word, every section and every provision together to know the 'intention' of the legislature or the 'purport' of the statute. I am of the considered opinion that Rule 9 and 10 of Order 8 give discretion to the trial Court to allow the defendant to file a written statement at any stage prior to the pronouncement of the judgment.
31. The above reasoning does not mean that the order extending time to file reply may be passed repeatedly unmindful of and totally ignoring the provisions that the extension may not exceed 90 days. It has to be done keeping in view the recent amendment and the Statement of Objects and Reasons. The discretion that is conferred on the trial Court under Rule 9 and Rule 10 of Order 8 of the Civil Procedure Code, as also Rule 1 cannot be exercised arbitrarily. The Supreme Court in Topline Shoes Ltd, has sounded a word of caution. The provisions, of Rule 1 and the Statement of Objects and Reasons must be kept in mind while passing an order extending the time to file a written statement. The powers under Rules 1, 9 and 10 of Order 8 should be used only in exceptional cases and that too for the reasons to be recorded in writing and cannot be exercised by a defendant as a matter of right. Such exercise of discretion must be judicial and not capricious and in keeping with the spirit of the recent amendment. In my opinion, there could be variety of situations where the Court may have to exercise the power vested in it, such as circumstance or events beyond the control of the defendant. For instance, an illness whether natural or accidental which does not permit the defendant to move from the bed for a long time and such illness is proved by the defendant, or negligence or carelessness of the advocate inviting the complaint for disciplinary action. However, as to the circumstances in which the discretion vested in the Court should be exercised no hard and fast rule can be laid down. It all depends on the particular facts of each case. The reasons recorded should reflect the circumstances in which the discretion vested is exercised. An endeavour should be to avoid 'snap decision'. The grounds, such as the advocate was not available, ignorance of law, the relevant documents were not available or any such ground, which could be termed as frivolous, cannot be a ground for the Court to exercise powers vested in it under the provisions of Rules 1, 9 and 10 of Order 8 for extending time for filing a written statement beyond the period prescribed under Rule 1 of Order 8, Civil Procedure Code.
32. Having expressed the aforesaid view on the question raised in the writ petitions, in my opinion, it would be more appropriate if the impugned orders in all the writ petitions are set aside and the concerned trial Courts are directed to consider the applications, below which the impugned orders are passed, afresh and pass appropriate orders in the applications filed by the defendants, who could not file written statements within the time prescribed under Order 8, Rule 1. It is needless to add that while doing so, the observations made in the judgment will have to be borne in mind and in the light thereof the speaking order be passed in the application seeking extension of time to file written statement keeping in view the intention of the legislature and the object of the recent amendment. Hence, the following order.
(a) Rule is made absolute in all the writ petitions.
(b) The orders, impugned in all the petitions, are quashed and set aside.
(c) The trial Courts are directed to hear and decide the applications afresh, in which the orders impugned have been passed, in the light of the observations made in the judgment before proceeding further in the suits.
No costs.
Parties to act on the copy of this order duly authenticated by the Personal Secretary of this Court.