Order 8 Rules 1 & 10 and 90 Days Validity

Delhi High Court

J.M. Overseas And Ors.
vs
Shri Vijay Kumar Mangla

on 25 January, 2007
Equivalent citations: II (2007) BC 191
Author: S Kumar
Bench: S Kumar, H Malhotra
JUDGMENT Swatanter Kumar, J.

1. Vijay Kumar Mangla filed a suit against M/s. J.M. Overseas and two other concerns for recovery of Rs.6 lacs on account of defamation. It was alleged by the defendants that the plaitniff was involved in import-export business and amongst others was also carrying on the business through M/s. Mangla Overseas, 434, Katra Medgran, Khari Baoli, Delhi. The plaintiff (respondent in the present appeal) stated that he has been carrying on the business for a number of years and enjoyed good reputation in the market and the society. The appellants no.1 to 4 (defendants in the suit) in the present appeal have also been carrying on the business for a number of years which are proprietorship concerns and they, amongst themselves, hatched a conspiracy with the intention to harm his good fame and reputation and with the intention to cause wrongful loss and damage to him. They made slanderous allegations stating that he was dishonest. It was also stated by them that the respondent while dealing with the firm M/s. Shyam Sunder Krishan Kumar had committed illegalities in the business dealings. Not only this, the appellants also lodged a false complaint to defame him in the business community, used defamatory language inter alia making the following averments thus causing mental torture to the plaintiff :

SALES TAX DEPARTMENT MAIN PATA KARNE PER MALOOM CHALA KEE YEH FIRM REGISTERED NAHI HAI. IS PARKAR INHONE JAAN BUJ KAR DHOKHADHDI KARNE KE IRADE SE YEH KAAM KIYA TAKI BAZAR KA PAISA LF KE AARAM SE BAAG SAKE ISKE PASCHAT SHYAM LAL PICHOTIYA SE MALOOM I AGA KI HIM TO SIRAF DUS HAZAR MAHAVAAR PER KAAM KARTE THAI ISKA ASLI MAI TK TO VIJAY KUMAR MANGLA (MANGLA OVERSEAS) PROPERTY NO. 434-435, KATRA MAIDGRAN MAIN STITH HAI TATHA KOTHI NO. B-199 DERAWAL NAGAR MAIN HAI.

2. It was stated by the plaintiff that the complaint was false and nothing was proved. It was also stated that due to the false criminal complaints filed by the said defendants, the police authorities also visited the house of the plaintiff at odd hours and even the police in uniform visited their place of business. A false FIR was lodged by the defendants being FIR No. 314 dated 18.9.2003 under Section 406/34 of the IPC against Shyam Lal and Vikas Kumar. The respondent, through his counsel Mr. N.C. Goyal, served a notice dated 22.8.2003 by registered acknowledgment due, to the appellants asking for damages. Being aggrieved and affected adversely by the false complaints dated 15.7.2003 and 22.7.2003, the plaintiff filed the present suit for recovery of Rs.6 lacs against the defendants, jointly and severally, and also claimed pendente lite and future interest @ 15% per annum.

3. The suit was contested by the defendants no.1,2 and 3. In the written statement filed on behalf of the said defendants preliminary objections were taken with regard to the maintainability of the suit as well as on the ground that the suit was bad for misjoinder and non-joinder of parties. The case of the plaintiff as stated in the plaint was denied and it was stated that the plaintiff had links with M/s. Shyam Sunder Krishan Kumar, who were doing illegal activities and that is why the name of the respondent was added in Page 0649 those complaints. According to them the defendants in the suit had been defrauded to the extent of lakhs of rupees and thus their grievance was genuine and bonafide. It was further denied that in the complaint lodged by them on 15.7.2003, though name of the plaintiff was not reflected directly, but it did surface that the plaintiff was having dealing with that concern, thus, the suit itself was not maintainable. The learned Trial Court vide its order dated 4.12.2004 passed a decree in favor of the plaintiff and against the defendants in the suit for a sum of Rs. 6 lacs with future interest @ 8% per annum under the provisions of Order 8 Rules 1 & 10. The Court took the view that the written statement filed on behalf of the defendants no.1 to 3 was filed after 90 days and as such the written statement could not be taken on record, resulting in passing of the impugned decree. The relevant extract of the impugned judgment and decree reads as under:

15. Thus, the emphasis of the superior Courts is on the strict interpretation of the procedure, that has been prescribed under Order 8 Rule 1 CPC. The mandate of the legislature has to be seen by the courts to be acted upon by the litigants. In the present case, the defendant have filed the written statements clearly beyond the period of 90 days, which is the maximum period, that can be granted to them to file their written statement.

16.The defendants cannot take any plea, out of their imagination, to extent this time on any pretext. The defendant did not file written statement on 20.05.04, 07.07.04 and again on 14.07.04 and it was only on 04.08.04, the written statement was filed, which date was much beyond the maximum stipulated period, prescribed under the law.

17.Nothing is convincing on the part of the defendants to show as to what prevented them from filing the written statement, within the period of 90 days, even if the exact date up to the expiry of 90 days was not fixed up in this case. Once it is held by own High Court, as stated above, that even this Court cannot extend the period of 90 days, the defendants are bound to take the consequences of having filed the written statement beyond the stipulated period prescribed under the law.

18.The authorities, cited by the Ld. Counsel for the defendants do not help him at all, as much as, the same are not applicable to the facts and circumstances of the present case.

19.In the present case, the written statement was filed by defendant no.1 and 3 after a period of 90 days and is, therefore, ordered to be taken off from the records of this case.

20.Once the written statement of the defendants is ordered to be taken off the records, there is no written statement on record by any of the defendant, having been filed within the prescribed period U/s 8 Rule 1 C.P.C.

21.Under the circumstances, the plaintiff is entitled to a decree U/O 8 Rule 10 CPC.

22.The suit of the plaintiff is, therefore, decreed for a sum of Rs. 6 lacs Page 0650 with future interest @ 8% p.a. from the date of filing of the suit, till realization of the decreetal amount. (The interest claimed @ 15% p.a. by the plaintiff appears to be excessive on the face of it and, therefore, reasonable interest @ 8% p.a. has been allowed in this case). Costs of the suit is also awarded in favor of the plaintiff.

23.Decree sheet be drawn up.

24.File be consigned to record room.

4. The learned Counsel appearing for the appellant while relying upon the judgments of the Supreme Court in the cases of Kailash vs. Nanhku and Ors. JT 2005 (4) Supreme Court 204; Salem Advocate Bar Association, Tamil Nadu vs. Union of India 2005 VI AD (S.C.) 421; Rani Kusum (Smt.) vs. Kanchan Devi (Smt.) and Ors. 2005 VII AD (S.C.) 192 and Shaikh Salim Haji Abdul Khayumsab vs. Kumar and Ors. AIR 2006 Supreme Court 396 argued that the approach adopted by the learned Trial Court is erroneous in law as it is not in conformation with the law enunciated by the Supreme Court in the above cases. The provisions of Order 8 Rule 1 read with Rule 10 of the said Order are directory and the power of the Court to take the written statement on Record beyond the period of 90 days cannot be taken away. The written statement had since been filed in furtherance to the orders of the Court. There was no occasion for the Court to pass a decree on the ground that there was no written statement on the Court file. The judgment and decree of the learned Trial Court, thus, according to the appellant suffers from factual and legal infirmities.

5. The learned Counsel appearing for the respondents while referring to some of the same judgments has argued that once the period of 90 days lapses and the written statement is not filed on behalf of the defendants, the passing of the decree is an automatic process and the provisions of Order 8 Rule 10 are mandatory to the extent that they do not leave any discretion with the Court, but to pass a decree in terms of the plaint. It is also argued that no time was granted and/or extended by the learned Trial Court which could entitle the defendants (appellants herein) to file the written statement.

6. It may not be necessary for us to examine these various judgments in great detail. Reference can usefully be made to a judgment of this Court in the case of Prem Lata and Ors. vs. Rajender Soni 2006 II AD (Delhi) 784 where the Court had the occasion to refer to various judgments including the judgments relied upon by the parties in the present case. The Court Page 0651 enunciated the principle that the provisions of Order 8 Rule 10 are not mandatorily prohibited so as to exclude the powers of the Court to extend the time and permit the written statement to be taken on record even after the expiry of the period of 90 days as stated under Order 8 Rule 1. The Court in the said judgment held as under:

Learned counsel appearing for the plaintiffs while relying upon the judgments of the Supreme Court in the cases of Shaikh Salim Haji Abdul Khayumsab (Mr.) v. Mr. Kumar and Ors. 2005 X AD (SC) 125, Rani Kusum (Smt.) v. Kanchan Devi (Smt.) and Ors. and Salem Advocate Bar Association, T.N. v. Union of India contended that even if the provisions of Order VIII Rule 10 and 1 are treated to be directory, still the averments made in the application under reply do not, in any way, constitute an exceptional case for grant of relief of condensation of delay to the applicant.

7. On the other hand, the learned Counsel appearing for the defendant also while relying upon the judgment of the Supreme Court in case of Shaikh Salim Haji Abdul Khayumsab (supra) contended that Order VIII Rule 1 is procedural and is not a substantive law. It intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of case causing inconvenience to the court and the parties. The object is to expedite the hearing and not to scuttle the same.

8. At this stage, reference can usefully be made to a recent judgment of this Court (IA Nos. 11417/2003, 568/2004, 2573/2005 & 2696/2005 in CS(OS) 501/2002 decided on November 24, 2005) where the court discussed the recent judgments of the Supreme Court as well as judgment of this Court and while condoning the delay in filing the written statement, the court held as under:

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At this stage it will be appropriate to refer to a recent judgment of this Court in the case of M/s Indradhanush T.V. Pvt. Ltd. Vs. National Film Development Corporation (IA 6065/2005 IN CS (OS) No. 232/2004) decided on 8th September, 2005 where the Court after relying upon the judgments of the Supreme Court in the case of Smt. Rani Kusum Vs. Smt. Kanchan Devi and Ors. JT 2005 (7) SC 409 and Kailash Vs. Nanhku and Ors. (2005) 4 SCC 480 held as under :

In terms of provisions of Order 8 Rule 1 the defendant has to present a written statement of its defense within 30 days from the Page 0652 date of service of summons on him. Under the proviso to the said rule, if the defendant fails to file the written statement within the granted time, he shall be allowed to file the same on such other day as may be specified by the Court for the reasons to be recorded in writing but shall not be later than 90 days from the date of service. Consequences of default are spelled out by the legislature in Rule 10 of the same order, which reads as under :

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.

The legislative intent behind the above provisions is to ensure expeditious disposal of the suit by adherence to the provisions of the Code. Once there is a default on the part of the defendant of Rule 1 as well as the time allowable under the proviso of the said order is lapsed, the consequences thereof have been provided in Rule 10, where the Court has to apply its mind to the facts and circumstances of each case and keeping in view the settled principles of law decide whether the Court would pronounce a judgment against the defendant or it may make such orders in relation to the suit as it thinks fit. If the Court pronounces a judgment, a decree shall follow. The power of the Court, thus, is dissected into two clear compartments and inevitable consequences in every case that default on the part of the defendant would necessarily result in passing the decree in favor of the plaintiff. What course of action the Court would adopt would depend upon the facts and circumstances of each case. Where the case of the plaintiff is so very clear on the basis of the averments made in the plaint supported by such documents as are filed by the plaintiff that it would be just, fair and equitable to pass a decree as no further proof thereof may be necessary in the opinion of the court, it may take recourse to the first action while in other cases it may direct the plaintiff to prove the case or even on account of special circumstances granted time to the defendant time to file written statement subject to such terms and conditions as the Court may deem fit and proper in the circumstances of the case. The law of procedure provided a methodology, which should be adopted by the Court while determining the rights of the plaintiff to lis. Some of the provisions of the procedure would be mandatory while others would be directory. Whether the provisions of Order 8 Rules 1 and 10 of the Code are directory/regulatory or are mandatory is no more res integra and has been squarely answered by the Supreme Court in the case of Kailash Vs. Nanhku and Ors. (2005) 4 SCC 480 where the Page 0653 Supreme Court considered at great length the historical background of introduction of the amended provisions of Order 8 in the Code and their effect. It was held by the Court :

41. Considering the object and purpose behind enacting Rule 1 of Order 8 in the present form and the context in which the provision is placed, we are of the opinion that the provision has to be construed as directory and not mandatory. In exceptional situations, the court may extend the time for filing the written statement through the period of 30 days and 90 days, referred to in the provision, has expired. However, we may not be misunderstood as nullifying the entire force and impact – the entire life and vigour – of the provision. The delaying tactics adopted by the defendants in law courts are now proverbial as they do stand to gain by delay. This is more so in election disputes because by delaying the trial of election petition, the successful candidate may succeed in enjoying the substantial part, if not in its entirety, the term for which he was elected even though he may lose the battle at the end. Therefore, the judge trying the case must handle the prayer for adjournment with firmness. The defendant seeking extension of time beyond the limits laid down by the provision may not ordinarily be shown indulgence.

42. Ordinarily, the time schedule prescribed by Order 8 Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defense and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the Court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for the asking, more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order 8 Rule 1 of the Code was being allowed to be beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended.

43.A prayer seeking time beyond 90 days for filing the written statement ought to be made in writing. In its judicial discretion exercised on well-settled parameters, the court may indeed put the defendants on terms including imposition of compensatory costs and may also insist on an affidavit, medical certificate or other documentary evidence (depending on the facts and circumstances of a given case) being annexed with the application seeking extension of time so as to convince the court that the prayer was founded on grounds which do exist.

Page 0654

44. The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the court. In no case, shall the defendant be permitted to seek extension of time when the court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel. The court may impose costs for dual purpose: (i) to deter the defendant from seeking any extension of time just for the asking, and (ii) to compensate the plaintiff for the delay and inconvenience caused to him.

45. However, no straitjacket formula can be laid down except that the observance of time schedule contemplated by Order 8 Rule 1 shall be the rule and departure there from an exception, made for satisfactory reasons only. We hold that Order 8 Rule 1, though couched in mandatory form, is directory being a provision in the domain of processual law.

Still in a more recent judgment again the Supreme Court in the case of Smt. Rani Kusum Vs. Smt. Kanchan Devi and Ors. JT 2005 (7) 409 discussed the principles governing provisions of Order 8 in the above regard with some elaboration and held as under :

Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decision should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.

In Topline Shoes Ltd. v. Corporation Bank , the question for consideration was whether the State Consumer Disputes Redressal Commission could grant time to the respondent to file reply beyond total period of 45 days in view of Section 13(2) of the Consumer Protection Act, 1986. It was held that the intention to provide time frame to file reply is really made to expedite the hearing of such matters and avoid unnecessary adjournments. It was noticed that no penal consequences had been prescribed if the reply is not filed in the prescribed time. The provision was held to be directory. It was observed that the provision is more by way of procedure to achieve the object of speedy disposal of the case.

Page 0655 The use of the word `shall’ in Order VIII Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word `shall’ is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure are handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.

In construing this provision, support can also be had from Order VIII Rule 10 which provides that 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, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to suit as it thinks fit. In the context of the provision, despite use of the word `shall’, the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII Rule 1. There is no restriction in Order VIII Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to `make such order in relation to the suit as it thinks fit’. Clearly, therefore, the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII Rule1.

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18. The Bench in para 54 after considering the Committee’s report has observed as follows:

Having regard to the constitutional obligation to provide fair, quick and speedy justice, we direct the Central Government to examine the aforesaid suggestions and submit a report on this Court within four months.

Page 0656

19. After elaborating the purpose for introduction of Order VIII Rule 1, this Court in Kailash’s case (supra) at paragraph 45 observed that no straitjacket formula can be laid down except that observance of time schedule contemplated by Order VIII Rule 1 shall be the rule and departure there from an exception, made for satisfactory reasons only. The conclusions have been summed up in Para 46. The relevant portion reads as follows:

(iv) the purpose of providing the time schedule for filing the written statement under Order VIII Rule 1 CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though the language of the proviso to Rule 1 Order VIII CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the procedural law,it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by Order VIII Rule 1 CPC is not completely taken away.

(v) Though Order VIII Rule 1 CPC is a part of procedural law and hence directory, keeping in view the need for expeditious trial of civil cases which persuaded Parliament to enact the provisions in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure there from would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the court on its being satisfied. Extension of time may be allowed if it is needed to be given for circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a case.

In view of the above recent judgments of the Supreme Court hardly any controversy need to be entertained in regard to the application of these provisions in law. What is significant is applying these provisions to the facts and circumstances of each case.

9. Reverting back to the facts of the present case. There is delay on the part of the defendant in filing the written statement. Vide order dated 7.4.2004, the defendant was granted time to file the written statement which was extended by the court vide order dated 6th August, 2004. The defendant Page 0657 could, thus, file the written statement by the second week of August, 2004 while it was filed on 1st October, 2004. During those proceedings, the plaintiffs themselves filed the application under Order 8 Rule 10 of the Code on 9th September, 2004.

10. The cumulative effect of these circumstances is that the defendant has rendered an explanation as a result of which he could not file the written statement within the prescribed time. The delay is of such a nature that passing of a decree at this initial stage of the proceedings would not meet the ends of justice. This is a suit for partition where everybody is a plaintiff and the parties to the suit have equal interest in the subject matter of the suit. If the delay in filing the written statement was considerable and was coupled with deliberate attempt on the part of the defendant to delay the suit, then it would lead to a different result. But in the facts and circumstances of the present case and keeping in view the explanation rendered by the defendant, it will be just and equitable to condone the delay and permit the written statement already filed to be taken on record. The written statement is on record of the judicial file since 1st October, 2004 and both these applications have remained pending now for more than a year. The interest of justice would demand that the suit is dealt with expeditiously rather than diverting it to arguments on these ancillary issues.

11. For the reasons afore-stated, the application for condensation of delay (IA 1103/2005) is allowed. The written statement filed by the defendant is permitted to be taken on record. The application filed by the plaintiffs under Order VIII Rule 10 of the Code (IA 5981/2004) for passing of a decree is dismissed. However, the defendant shall pay costs of Rs.5,000/- to the plaintiffs for the delay in filing the written statement. The written statement would be taken on record subject to payment of costs.

7. Reference can also be made to another judgment of this Court in the case of Indian Institute of Public Information Pvt. Ltd. vs. Gopal Krishan and Anr. 2006 I AD (Delhi) 424 where the Court again after discussing the relevant law in detail held as under:

The use of the word `shall’ in Order VIII Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word `shall’ is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure are handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.

In construing this provision, support can also be had from Order VIII Rule 10 which provides that 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, the Court shall pronounce Page 0658 judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to suit as it thinks fit. In the context of the provision, despite use of the word `shall’, the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII Rule 1. There is no restriction in Order VIII Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to `make such order in relation to the suit as it thinks fit’. Clearly, therefore, the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII Rule1.

18. The Bench in para 54 after considering the Committee’s report has observed as follows:

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Having regard to the constitutional obligation to provide fair, quick and speedy justice, we direct the Central Government to examine the aforesaid suggestions and submit a report on this Court within four months.

19. After elaborating the purpose for introduction of Order VIII Rule 1, this Court in Kailash’s case (supra) at paragraph 45 observed that no straightjacket formula can be laid down except that observance of time schedule contemplated by Order VIII Rule 1 shall be the rule and departure there from an exception, made for satisfactory reasons only. The conclusions have been summed up in Para 46. The relevant portion reads as follows:

(iv) the purpose of providing the time schedule for filing the written statement under Order VIII Rule 1 CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though the language of the proviso to Rule 1 Order VIII CPC is couched in Page 0659 negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the procedural law,it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by Order VIII Rule 1 CPC is not completely taken away.

(v) Though Order VIII Rule 1 CPC is a part of procedural law and hence directory, keeping in view the need for expeditious trial of civil cases which persuaded Parliament to enact the provisions in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure there from would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the court on its being satisfied. Extension of time may be allowed if it is needed to be given for circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a case.

In view of the above recent judgments of the Supreme Court hardly any controversy need to be entertained in regard to the application of these provisions in law. What is significant is applying these provisions to the facts and circumstances of each case.

9. Applying to above principles to the facts of the present case and particularly in view of the fact that no application itself was filed by the defendants for passing a decree under Order 8 Rule 10 CPC in relation to the counter claim raised in the written statement for all this period, I am of the considered view that it will be causing grave injustice and hardship to the plaintiff if the written statement which has already been on the record of the file since May, 2004 is not permitted to be taken on record and the delay in filing the written statement from March, 2004 to May, 2004 is not condoned. That result is also directly attributable to the plaintiff but was an error on the part of counsel who made a statement on 4th and 25th March, 2004 that written statement to the counter-claim has already been filed. These are some peculiar circumstances which would tilt the equity more in favor of the applicant rather than the plaintiff who himself was not vigilant of the right of the benefit which would accrue to him under the provision of Order 8 Rule 10 CPC.

8. Now, we may proceed to discuss the merits of the arguments raised before us in the backdrop of the facts of the present case. The plaintiff had filed the suit for recovery of damages on the basis of defamation relatable to the complaints dated 15.7.2003 and 22.7.2003. The claim was contested on facts and law by the defendants. The Page 0660 summons in the suit were issued on 17.3.2004, returnable on 19.4.2004. Even dusty service was allowed. On 19.4.2004 it was recorded in the order that the defendants had been served and as nobody appeared on behalf of the respondent no.4, he was ordered to be proceeded ex-parte while defendants no.1 to 3 were directed to file the written statement and the case was fixed for 20.5.2004. Thereafter, the case was adjourned as to 7.7.2004. The Presiding Officer was on leave and vide order dated 14.7.2004, the date to which the case was adjourned, the Court allowed the prayer of the defendants for filing the written statement and they were directed to file the written statement on 4.8.2004. The said order reads as under:

4-8-2004 Pr. : Counsel for the parties W/s on behalf of the defendant no.1 to 3 filed. Counsel for defdt. states that it is beyond the period of 90 days and therefore, cannot be taken on record. He intends to move an application in this regard and also wants to cite the law laid down by Hon. Supreme Court. Sometime requested for bringing the case law and to argue the matter.

Ld. Counsel for pltf. however, has given an advance copy of the intended application to the other side.

Put up for consideration on the contentions raised on behalf of the pltf. and also for replication. AD of documents and framing of issues on 10.8.04.

9. On 4.8.2004, the written statement was filed. However, the learned Counsel appearing for the plaintiff in the suit took an objection that the written statement was filed beyond the period of 90 days and he proposed to move an application which was subsequently filed. This application was filed and arguments were heard on 10.8.2004, 10.9.2004, 20.9.2004, 11.10.2004 and the same were concluded on 10.11.2004.The case was fixed for orders, order was made on 4.12.2004 resulting in passing of a final decree under the provisions of Order 8 Rule 1 of the Code of Civil Procedure. It is evident from the facts emerging from the record that the Court had passed a specific order on three different occasions for filing the written statement. Once the Court had granted time to file the written statement, the presumption would be in favor of the order of the court rather than against it, particularly when the said order was not objected to by the plaintiff, and in fact, he conceded to those orders. The plaintiff in the suit did not assail those orders before any higher Court. In other words, in respect of these orders, the parties accepted and acted thereupon, the acquiescence would be an inevitable element to be inferred from the record. The plaintiff having consented to/having not objected to the orders of the Court passed earlier, he cannot be permitted to take advantage of his own behavior and consent, that too opposed to the spirit of the order of the Court. In the application filed by the plaintiff under Order VIII Rules 1 and 10, it was stated that the written statement could not be taken on record Page 0661 later than 90 days from the date of service of summons and the defendants had no right to file the written statement, thus, a decree in terms of the above provisions should be passed. This application was prepared and filed on 4.8.2004 while the written statement had already been filed in furtherance to orders of the Court dated 14.7.2004. No objection was raised on behalf of the plaintiff, though they were present at the time of passing of the order granting extension of time for filing of the written statement. The provisions of Order VIII, Rules 1 and 10 read together are directory in the sense that compliance to them may be essential but they in no way divest the Court of its inherent power or jurisdiction to take a written statement on record beyond the period of 90 days, of course for good and valid reasons. In the present case there was no occasion for the defendants to explain the delay in filing the written statement and file any application in that regard as the written statement was filed within the extended time allowed by the Court by its specific order.

10. The reasons stated by the Court is “that nothing is convincing on part of the defendants to show what prevented them from filing the written statement within the period of 90 days”. Once, the Court itself had granted extension of time to file the written statement there was no occasion for the Court to recall those orders without there being any application on record. Actus curiae neminem gravabit is a settled maxim of law. Once the defendants had been given any benefit under the orders of the Court, the same could not be withdrawn except by due process of law. The order of the Court granting extension of time for filing the written statement cannot be termed as Extra jus or beyond the jurisdiction. Thus, the analysis done by the learned Trial Court is not in consonance with the settled principles of law in terms of the judgments of the Supreme Court as well as this Court. One of the basic purpose of these statutory provisions is expeditious disposal of the cases and to prevent delay being caused by unscrupulous defendants. Once a date was given by the Court for filing of the written statement much beyond the period of 90 days with the consent of the plaintiff, no fault can be found with the exercise of such discretion by the learned Trial Court. Thereafter, the case remained pending for arguments on the said application for a considerable time. This itself is contrary to the scheme of these amended provisions. Resultantly, we are not able to find any merit in the contentions raised on behalf of the respondents in the appeal.

11. Ergo, for the reasons afore-recorded, we set aside the judgment and decree of the learned Trial Court dated 4.12.2004 and remand the case to the learned Trial Court for its adjudication on merits in accordance with law. We do hope that the learned Trial Court would be able to dispose of the suit as expeditiously as possible. However, in the circumstances of the case, the parties are left to bear their own costs.

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