Asha Vs. Rashmi Trilokchandra Hedaoo and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1175281
CourtMumbai Nagpur High Court
Decided OnJul-09-2014
Case NumberWrit Petition No. 1109 of 2014
JudgeA.P. BHANGALE
AppellantAsha
RespondentRashmi Trilokchandra Hedaoo and Another
Excerpt:
oral judgment: 1. rule. rule made returnable forthwith. heard the matter by consent of learned counsel appearing for the petitioner. 2. though served, none appeared for the respondents. the respondents remained absent. 3. the petitioner questions the legality, propriety, and correctness of impugned order dated 15.1.2014, passed by learned seventh joint civil judge junior division, wardha, below exh.38, in pending regular civil suit no.122 of 2013, whereby the application for permission to file the written statement filed by the petitioner/defendant was rejected. in the result, therefore, the defendant was deprived of filing written statement though it was pleaded that due to intermittent ailment of defendant no.1, written statement could not be filed earlier. 4. the contention is, the petitioner/defendant had moved an application on 8.1.2014 for setting aside no written statement order, passed on 10.10.2013, and sought permission to file the written statement on the ground that since the petitioner was not keeping good health, the written statement could not be filed within time. the petitioner had also annexed the medical certificate in support of her application exh.38. 5. since respondent no.1/plaintiff had opposed the prayer by reply exh.39, learned trial judge made reference to the amendment of the code of civil procedure introduced in the year 2002 and noted that the provision under order viii rule 1, is directory than mandatory and also noted that liberal approach is required to be taken but felt that the delay was deliberate and making reference to the adjournments sought earlier in the suit, was pleased to reject the application for furnishing the written statement. 6. the relevant provision is stated in order viii rule 1 which provides for 30 days from the date of service of summons on defendant to present the written statement of his defence. thereafter in view of the proviso, the defendant may apply within 90 days from the date of service of summons to take his written statement on record. this limitation prescribed under the rule is basically to expedite the trial and not to scuttle it. the provision was considered by the honourable supreme court in the cases of balraj taneja and another ..vs.. sunil madan and another, reported at (1999)8 scc 396; as well as in c.n. ramappa gowda ..vs.. c.c. chandregowda (dead) by lrs and another reported at (2012)5scc 265. the procedural rules are construed as directory though couched in the negative language which appears prohibitory. the court of law exist to do complete and substantial justice between the parties even in the absence of complete pleading or pleading by one party only. 7. the limitation provided under the rule though spelled disability upon the defendant as time limit provided in the rule has expired since the date of service of summons upon the defendant, it does not impose an embargo on the power of court to extend the time for submission of written statement since the provision being in the domain of procedural law, it is held as directory and not mandatory. the delay can be condoned for sufficient cause in the larger interest of justice subject to imposition of reasonable costs upon the defendant who erred to file the written statement within time limit fixed by the procedural provision. of course, extension of time limit to file the written statement is with permission of the court and the court do extend time for filing the written statement using judicial discretion for adequate reason to permit the written statement which can be filed within extended time subject to reasonable payment of costs to the plaintiff. 8. in the case in hand, the reason stated was ailment of defendant no.1 and the application was supported by the medical certificate. under these circumstances, i think the learned trial judge could have graciously permitted filing of the written statement in the larger interest of justice subject to reasonable costs so as to decide the suit on merits and in accordance with law. in that view of the matter, the writ petition needs to be allowed because procedure is handmaid of justice rather than a mistress. the procedural technicality ought not to be allowed to override cause of justice. 9. in the result, the writ petition is allowed. the impugned order dated 15.1.2014, passed by learned seventh joint civil judge junior division, wardha, below exh. 38, is set aside. the petitioner/defendant shall file her written statement within a period of fifteen days from today before the trial court and the trial court is directed to proceed further to frame issues and to decide the pending regular civil suit on merits and in accordance with law. the writ petition is allowed accordingly. rule is made absolute accordingly. no order as to costs.
Judgment:

Oral Judgment:

1. Rule. Rule made returnable forthwith. Heard the matter by consent of learned counsel appearing for the petitioner.

2. Though served, none appeared for the respondents. The respondents remained absent.

3. The petitioner questions the legality, propriety, and correctness of impugned order dated 15.1.2014, passed by learned Seventh Joint Civil Judge Junior Division, Wardha, below Exh.38, in pending Regular Civil Suit No.122 of 2013, whereby the application for permission to file the written statement filed by the petitioner/defendant was rejected. In the result, therefore, the defendant was deprived of filing written statement though it was pleaded that due to intermittent ailment of defendant No.1, written statement could not be filed earlier.

4. The contention is, the petitioner/defendant had moved an application on 8.1.2014 for setting aside no written statement order, passed on 10.10.2013, and sought permission to file the written statement on the ground that since the petitioner was not keeping good health, the written statement could not be filed within time. The petitioner had also annexed the medical certificate in support of her application Exh.38.

5. Since respondent No.1/plaintiff had opposed the prayer by reply Exh.39, learned trial Judge made reference to the amendment of the Code of Civil Procedure introduced in the year 2002 and noted that the provision under Order VIII Rule 1, is directory than mandatory and also noted that liberal approach is required to be taken but felt that the delay was deliberate and making reference to the adjournments sought earlier in the suit, was pleased to reject the application for furnishing the written statement.

6. The relevant provision is stated in Order VIII Rule 1 which provides for 30 days from the date of service of summons on defendant to present the written statement of his defence. Thereafter in view of the proviso, the defendant may apply within 90 days from the date of service of summons to take his written statement on record. This limitation prescribed under the Rule is basically to expedite the trial and not to scuttle it. The provision was considered by the Honourable Supreme Court in the cases of Balraj Taneja and another ..vs.. Sunil Madan and another, reported at (1999)8 SCC 396; as well as in C.N. Ramappa Gowda ..vs.. C.C. Chandregowda (dead) by LRs and another reported at (2012)5SCC 265. The procedural rules are construed as directory though couched in the negative language which appears prohibitory. The Court of Law exist to do complete and substantial justice between the parties even in the absence of complete pleading or pleading by one party only.

7. The limitation provided under the Rule though spelled disability upon the defendant as time limit provided in the Rule has expired since the date of service of summons upon the defendant, it does not impose an embargo on the power of Court to extend the time for submission of written statement since the provision being in the domain of procedural law, it is held as directory and not mandatory. The delay can be condoned for sufficient cause in the larger interest of justice subject to imposition of reasonable costs upon the defendant who erred to file the written statement within time limit fixed by the procedural provision. Of course, extension of time limit to file the written statement is with permission of the Court and the Court do extend time for filing the written statement using judicial discretion for adequate reason to permit the written statement which can be filed within extended time subject to reasonable payment of costs to the plaintiff.

8. In the case in hand, the reason stated was ailment of defendant No.1 and the application was supported by the medical certificate. Under these circumstances, I think the learned trial Judge could have graciously permitted filing of the written statement in the larger interest of justice subject to reasonable costs so as to decide the suit on merits and in accordance with law. In that view of the matter, the writ petition needs to be allowed because procedure is handmaid of justice rather than a mistress. The procedural technicality ought not to be allowed to override cause of justice.

9. In the result, the writ petition is allowed. The impugned order dated 15.1.2014, passed by learned Seventh Joint Civil Judge Junior Division, Wardha, below Exh. 38, is set aside. The petitioner/defendant shall file her written statement within a period of fifteen days from today before the trial Court and the trial Court is directed to proceed further to frame issues and to decide the pending regular civil suit on merits and in accordance with law.

The writ petition is allowed accordingly. Rule is made absolute accordingly. No order as to costs.