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Atul Pandey vs Ms. Shaily Bajpai And Another on 13 November, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Court No. – 40

Case :- MATTERS UNDER ARTICLE 227 No. – 4574 of 2019

Petitioner :- Atul Pandey

Respondent :- Ms. Shaily Bajpai And Another

Counsel for Petitioner :- Archana Tripathi

Hon’ble Manoj Kumar Gupta,J.

Notice was issued to the opposite parties but they have not appeared personally nor through counsel. Office report dated 11.11.2019 mentions that as per track consignment report of Indian Post Office, the notices sent to opposite parties no.1 and 2 have been duly delivered. Accordingly, service of summons upon opposite parties no.1 and 2 is held to be sufficient.

The instant petition is directed against the order dated 10.4.2019 passed by Principal Judge, Family Court, Kanpur Nagar in Case No.29/70 of 2018 under Section 25 of the Guardian and SectionWards Act. The case was filed by the petitioner seeking custody of his minor son Ashutosh Pandey (opposite party no.2), who is stated to be living with his mother (opposite party no.1). It is noteworthy that the marriage between the petitioner and opposite party no.1 was dissolved by a decree of divorce passed by Family Court, Bilaspur, Chhattisgarh on 3.8.2017. It seems that on 29.3.2019, the petitioner filed an application stating that opposite party no.1 had entered appearance in the proceedings on 11.7.2018, but she had not filed her written statement so far, therefore, the court should proceed under Order 8 Rule 10 CPC. On 10.4.2019, opposite party no.1 filed her written statement alongwith an application for condoning the delay in filing the written statement and for rejecting the application filed by the petitioner. She stated in the application that she could not file the written statement because of great mental stress she was undergoing upon coming to know that proceedings had been initiated by the petitioner for taking custody of the son from her. In the application she further stated that the petitioner had filed several miscellaneous applications in the proceedings and she remained busy in filing their reply and consequently, could not file the written statement. She also stated that she was not very well conversant with the legal intricacies, resulting in delay in filing of the written statement.

The trial court, after considering the application of opposite party no.1, declined to proceed under Order 8 Rule 10 CPC and accepted the written statement filed by her. Aggrieved thereby, the instant petition has been filed.

Counsel for the petitioner vehemently contended that after expiry of period of 30 days and extended period of 90 days stipulated under the proviso to Order 8 Rule 1 CPC, the court has no power to accept written statement. It is urged that Order 8 Rule 1 CPC is mandatory. In support of her submission, learned counsel for the petitioner has placed reliance on a judgement of the Supreme Court in M/s SCG Contracts India Private Ltd. Vs. K.S. Chamankar Infrastructure Pvt. Ltd. and others, AIR 2019 SC 2691, a judgment of a learned Single Judge of this Court in Dr. Nanda Agrawal Vs. Matri Mandi and another, 2005 (1) AWC 948, a judgement of Karnataka High Court in Smt. Savitha Gupta Vs. Smt. Nagarathna and others, AIR 2003 Kant 426 and a judgment of Chhattisgarh High Court in Smt. Anuradha Dubey Vs. Prasen @ Laxmikant Dubey.

Order 8 Rule 1 CPC was amended by Act No.22 of 2002 providing that where the defendant fails to file written statement within the period of 30 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.

The said provision was subject matter of consideration by the Supreme Court in large number of cases. The first amongst them being in Kailash Vs. Nanhku and others, AIR 2005 SC 2441, wherein the Supreme Court observed as under:-

“Three things are clear. Firstly, a careful reading of the language in which Order VIII, Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Secondly, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order VIII, Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried. ”

The Supreme Court summed up the conclusions, interalia, as under:-

“(iv) The purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1 of 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 of Order VIII of the 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 of the CPC is not completely taken away.

(v) Though Order VIII, Rule 1 of the CPC is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the Parliament to enact the provision 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 therefrom 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 was needed to be given for the 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.”

SectionIn Salem Advocate Bar Association, Tamilnadu vs Union of India, (2005) 6 SCC 635, once again, the Supreme Court considered the provisions of Order 8 Rule 1 CPC in light of the amendment carried out and held that:-

“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. The rules of procedure are made 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.”

The legal position which emerges from the pronouncements made by the Supreme Court is that:- (a) Order 8 Rule 1 CPC is a provision which deals with the procedural law and not substantive rights of the parties; (b) the provision though couched in a negative language is not mandatory but directory; (c) the court has enough power to condone delay in filing written statement even beyond the stipulated period; (d) however, it could be for exceptional reasons beyond the control of the party and only when the court is of the opinion that by condoning delay, it would advance the cause of justice;

Learned counsel for the petitioner, as noted above, has placed much emphasis on the judgement of the Supreme Court in M/s SCG Contracts Pvt. Ltd. (supra), wherein the Supreme Court has held that where written statement is not filed even after expiry of 120 days, the defendant shall forfeit the right to file written statement. It is noteworthy that the said observation came to be made in the context of the amendment made in the Code of Civil Procedure by Section 16 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, which reads thus:-

“16. Amendments to the Code of Civil Procedure, 1908 in its application to commercial disputes.- (1) The provisions of the Code of Civil Procedure, 1908 (5 of 1908) shall, in their application to any suit in respect of a commercial dispute of a Specified Value, stand amended in the manner as specified in the Schedule.

(2) The Commercial Division and Commercial Court shall follow the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, in the trial of a suit in respect of a commercial dispute of a Specified Value.

(3) Where any provision of any rule of the jurisdictional High Court or any amendment to the Code of Civil Procedure, 1908 (5 of 1908), by the State Government is in conflict with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, the provisions of the Code of Civil Procedure as amended by this Act shall prevail.”

According to the Schedule, a new proviso was substituted in Order, 5 Rule 1, sub-rule (1), and Order 8, Rule 1, CPC which specifically provides that after expiry of 120 days, the defendant shall forfeit the right to file the written statement and Court shall not allow the written statement to be taken on record. These amendments have been made applicable only to commercial disputes brought before Commercial Courts. However, in respect of ordinary civil cases, the proviso as inserted by SectionU.P. Act No.22 of 2002 continue to apply, meaning thereby that the law laid down by the Supreme Court in Kailash Vs. Nanhku (supra) and Salem Bar Association (supra) still holds the field. Consequently, the law laid down in SCG Contracts would not apply to the facts of the instant case.

The next judgment cited by learned counsel for the petitioner in Dr. Nanda Agrawal (supra) does not take into consideration the authoritative pronouncements made by the Supreme Court in Kailash Vs. Nanhku (supra) and Salem Advocate Bar Association (supra), therefore, in so far as it holds that the court is powerless to extend time for filing of written statement beyond 90 days does not lay down good law. Same is the position in respect of judgments of other High Courts cited by learned counsel for the petitioner.

Indisputably, the opposite party herself appeared in the proceedings on 11.7.2018. She had time till 11.8.2018 to file written statement and which could be extended upto ninety days, i.e. till 11.10.2018. The written statement was filed on 10.4.2019 i.e. almost after six months beyond the stipulated period.

I have carefully gone through the application filed by the applicant, praying for condonation of delay in taking the written statement on record. The application specifically recites that she is not well versed with law. She remained busy in submitting reply to various miscellaneous applications, filed by the petitioner. She was under great mental stress and trauma, on account of the pending proceedings, wherein she apprehended threat to the custody of her minor son, being snatched away from her. She stated that on account of these reasons, she could not file written statement in time and prayed for condonation of delay. 

Although the order passed by the Family Court does not deal in great detail with the contents of the application, but the Family Court while accepting the written statement, has observed that having regard to the reply submitted by respondent no. 1, it would be in the interest of justice to decide the matter on merits, as the dispute relates to family matter. 

The marriage between the parties took place on 29.11.2008 and out of the said wedlock, opposite party no. 2 was born on 29.11.2010. Hardly after four years, the relationship between them became strained, followed by a petition for dissolution of marriage by the petitioner, which was allowed on 3rd August 2017. The opposite party has taken the ground that after coming to know that proceedings have been initiated by the petitioner for taking custody of minor son, she was under great mental stress and trauma. She remained entangled in contesting miscellaneous applications filed by the petitioner from time to time, resulting in delay in filing the written statement.

The explanation offered by the respondent wife has to be considered in the above context. The dispute between the parties does not pertain to any property right but relationship between human beings. Both the parties must be under great mental stress because of past events. The ability to take decision wisely and rationally in the above situation would undoubtedly get impaired, as claimed by the respondent. The provision of Order 8 Rule 1 CPC, as held by the Supreme Court in Salem Advocate Bar Association has to be interpreted to promote justice and prevent its miscarriage. While considering whether delay in filing written statement should be condoned or not, a very liberal approach has to be eschewed, but at the same time, it should be justice oriented and keeping in mind the entire facts and circumstances of the case. This Court, having regard to the entire facts as well as pros and cons of taking/not taking written statement on the record leans in favour of accepting the same, being of the opinion that it would advance the cause of justice. The explanation furnished for the delay, in the peculiar facts of the instant case, clearly brings it with the ambit of the exceptions carved out by the Supreme Court where the Court can exercise its discretion in favour of condoning the delay. Any contrary view would not expedite the hearing but would scuttle it, which is not the object of the statutory provision under consideration.

However, before parting, this court is of the opinion that since the dispute relates to custody of minor child of the parties and therefore, the court below should make serious effort to decide the case, by fixing dates on day-to-day basis and without granting any unnecessary adjournment to the parties. 

Accordingly, without interfering with the impugned order, the instant petition is disposed of with direction to the trial court to ensure that the proceedings be conducted in the manner stated above, so that the same are concluded very expeditiously.

No order as to costs. (Manoj Kumar Gupta, J)  

Order Date :- 13.11.2019

SL

 

 

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