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Wrong Legal Advice Is Valid Ground To Condone Delay In Filing Written Statement

Calcutta High Court
(Appellete Side)

SG CO 1563 of 2018

Natwarlal Mehta

-versus-

Goswamini Rukmini Bahuji Maharaj with CO 1564 of 2018 Kanhaiyalal Mehta

-versus-

Goswamini Rukmini Bahuji Maharaj with CO 1565 of 2018 Daulal Mehta

-versus-

Goswamini Rukmini Bahuji Maharaj

Mr Kushal Chatterjee … for the petitioner.
Mr Debajyoti Basu Mr Kushal Das … for the opposite party.

The defendant in an eviction suit has preferred the instant revisional application. By virtue of the impugned order, a show- cause petition filed by the petitioner for acceptance of the petitioner’s written statement was rejected, primarily on the premise that ignorance of law and wrong advice of Advocate were not sufficient grounds to condone the delay. The additional factor in the present case was an order dated July 5, 2017 passed by a coordinate Bench in CO 4490 of 2016, whereby the court below was asked, inter alia, to ensure that the written statements were filed without any further delay.

The three revisional applications, bearing CO 1563 of 2018, CO 1564 of 2018 and CO 1564 of 2018, which arise from similar orders passed in three suits being heard analogously, are taken up together for hearing. The contention of the petitioner as well as the opposite party are similar in three matters.

It is submitted by learned advocate for the petitioner in each of the matters, that there was no fault on the part of the petitioner in occasioning the delay in filing the written statement, which is also evident from the fact that the petitioner in each of the matters had filed an application under Sections 7(1) and 7(2) of the West Bengal Premises Tenancy Act, 1997 within the stipulated period and there could not have been any reason for not filing the written statement also within time, unless the petitioner was not advised correctly. It is further pointed out that only on January 29, 2018 a new Advocate was appointed by the petitioner and the written statement was filed immediately thereafter, on February 1, 2018.

While countering such arguments of the petitioner, learned advocate for the opposite party hands over a photocopy of an order-sheet of the suit in question. It is evident from order no.14 dated July 27, 2017, that not only the opposite party, but also the petitioner, had intimated the trial court about the previous order of the coordinate Bench of this court, whereby the trial court was directed to ensure that written statements are filed without further delay.

In view of such specific knowledge of the petitioner as to the said order of this Court, coupled with the fact that immediately thereafter the petitioner in each of the matters filed applications under Sections 7(1) and 7(2) of the said Act of 1997, it is not credible that the petitioner in each of the matters was not aware of the necessity of filing the written statement within a particular statutory period. In fact, it is argued that after receiving a copy of the plaint on July 27, 2017, which is also evident from the order of the said date, no excuse could lie in the mouth of the defendant/petitioner for occasioning further inordinate delay in filing the written statement.

In support of his contentions, learned advocate for the opposite party cites several judgments.

The first cited judgment was reported at (2014) 1 WBLR (Cal) 966 (Madhusudan Manna v Sandhya Dey & ors). A coordinate Bench held, in the said case, that the provisions of Order VIII Rule 1 of the Code of Civil Procedure were not mandatory and rather directory. However, it was held that acceptance of a written statement beyond the prescribed period had to be accompanied by sufficient explanation to justify the delay.

The second cited judgment was reported at (2007) 6 SCC 420 (R.N. Jodi and Brothers & ors v Subhashchandra). In such judgment, the Hon’ble Supreme Court held, inter alia, that although Order VIII Rule 1 was directory, the exercise of jurisdiction in permitting belated written statements was to be undertaken with caution and for adequate reasons. It was held that extension of time could only be passed on a clear satisfaction of the justification for granting such extension, the court being conscious that such power was restricted by the legislature.

The third cited judgment was reported at (2009) 3 SCC 513 (Mohammed Yusuf v Faij Mohammad & ors). In the said judgement, the Hon’ble Supreme Court held, inter alia, that the jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India was limited. The High Court could only have set aside the orders passed by the subordinate courts on the limited grounds of illegality, irrationality and procedural impropriety. In the said case, such exercise was undertaken by the High Court in connection with an order rejecting a prayer for condonation of delay in filing written statement.

The fourth cited judgment was reported at (2008) 11 SCC 769 (Zolba v Keshao & ors) where it was held by the Hon’ble Supreme Court that the proviso to Order VIII Rule 1 of the Code of Civil Procedure was not mandatory. However, such exercise was to be undertaken in extraordinary situations.

The fifth cited judgment was reported at (2006) 1 SCC 46 (Shaikh Salim Haji Abdul Khayumsab v Kumar & ors). The Hon’ble Supreme Court held in the said case, inter alia, that the proviso to Order VIII Rule 1 of the Code of Civil Procedure was directory. However, compelling impossibility was one of the considerations for permitting such belated filing of written statement.

The last judgment cited by the opposite party was reported at (2014) 2 SCC 302 (Sandeep Thapar v SME Technologies Pvt Ltd). In the said case, the Hon’ble Supreme Court permitted belated filing of written statement beyond the prescribed period on payment of costs of Rs.50,000/-. It was only held that although Order VIII Rule 1 of the Code of Civil Procedure was directory, such provision could be invoked for accepting a belated written statement in exceptional circumstances, in order to ensure that injustice was not done.

It is, thus, submitted on behalf of the opposite party that the discretion exercised by the trial court was absolutely within jurisdiction and ought not to be interfered with by this court under Article 227 of the Constitution of India.

Upon hearing both the parties and going through the materials on record, it appears that the previous order passed by the coordinate Bench in CO 4490 of 2016 was an order in terrorem and could not operate to preclude the petitioner from filing his written statement altogether. However, it is also seen that the petitioner had full knowledge of the said order at least on July 27, 2017 when a copy of the order was also submitted by the petitioner in the court below. On the same date a copy of the plaint was also handed over to learned advocate appearing for the petitioner in the court below, robbing the petitioner the excuse of not having the said copy for filing his written statement. Even after having received such a copy, the petitioner took about six months for filing his written statement, on the flimsy pretext of being an “ordinary man” and being incorrectly advised by his erstwhile Advocate. In fact, the petitioner filed his application under Sections 7(1) and 7(2) of the said Act of 1997 on August 4, 2017 by a put-up petition, but waited till February 1, 2018 to file his written statement.

It may quite well be that such prior filing of the interlocutory application and late filing of the written statement could be construed as a double-edged sword. It could be argued by both sides in their favour. Just as the plaintiff/opposite party is justified in submitting that the petitioner could deliberately file the interlocutory application to save his defence from being struck out, but wait for filing the written statement to delay the hearing of the suit, the defendant /petitioner was equally justified in relying on such discrepancy to highlight the erroneous advice given to the petitioner.

Although otherwise an exercise of discretion ought not to be interfered with, as rightly pointed out by learned advocate for the opposite party, in the present case the trial judge proceeded on the premise that even wrong advice of Advocate could not be considered as sufficient ground to condone the delay in filing the written statement.

One has to be pragmatic and cannot live in Utopia. Undoubtedly, ideally, an advice from an Advocate ought to be correct, and fault ought to be attributed on the litigant for having delayed the filing of written statement; but in terms of real-life situations, we often find that there are errors committed both on the part of the Bench and the Bar. As such, we cannot think in terms of such ideal scenario and raise the sanctity of legal advice to such a pedestal that the litigant would be strangled on the way.

In the present case, in fact, the petitioner was diligent enough to file an application under Sections 7(1) and 7(2) of the Act of 1997 well within time. There could not be any reason for the petitioner to wait for filing his written statement unless there was a wrong legal advice. The trial court applied an erroneous legal test in overlooking wrong advice of advocate as a valid ground for condoning delay, thereby committing a jurisdictional error.

However, in view of there being sufficient scope of attributing negligence to the petitioner, and in view of the undeniable harassment to the opposite party, the petitioner ought to be saddled with costs for occasioning the delay in filing the written statement.

Accordingly, C.O. No.1563 of 2018, C.O. No.1564 of 2018 and C.O. No.1565 of 2018 are allowed on contest.

The orders impugned respectively therein are set aside, thereby directing the written statement filed by each of the petitioners in the respective suits to be accepted and the said suits to be taken off from the ex parte board. However, the petitioner in each of the cases will pay costs, assessed at Rs. 50,000/- each, to the opposite party. Such costs will be paid within three weeks from date by separate account payee cheques in respect of each of the revisional applications, each for an amount of Rs. 50,000/- and all drawn in the name of the opposite parties. Such payment will be made through learned advocate appearing for the opposite party in this Court. In view of the previous order of this Court in C.O. 4490 of 2016, it is expected that the trial court will adhere to the direction given in such order as far as early disposal of the suit is concerned.

It is made clear that in the default of payment of costs as directed above, this order will automatically stand vacated without further reference to the court, thereby reviving the orders impugned in the present revisional applications.

( Sabyasachi Bhattacharyya, J. )

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