JUDGMENT
I.A. Ansari, J.
1. While the suit No. 88/2005 was lying fixed for ex parte hearing against the defendants in the suit, the defendant No. 2, who is opposite party in the present revision, filed a petition a long with his written statement praying to the court to pass necessary order(s) accepting the written statement. The plaintiff, who is petitioner in the present revision, raised objection to the prayer so made by the defendant No. 2 and also filed a petition urging, the court to pronounce, in terms of the provisions of Order 8, Rule 10 of the Code of Civil Procedure (‘the Code’), the judgment, in the suit on the ground that the defendants had failed to submit their written statements within the time allowed by the court.
2. Upon hearing learned Counsel for the parties on both the petitions, learned Civil Judge (Senior Division), Sibsagar, on 21.06.2004, parsed an order accepting the written statement and declining thereby to pronounce the judgment in the suit as had been sought for by the plaintiff. Aggrieved by the order, dated 21.6.2004, aforementioned, the plaintiff has impugned the same in the present revision.
3. I have heard Mr. G.C. Phukan, learned Counsel for the plaintiff-petitioner, and Mr. R.P. Kakoti, learned Counsel for the defendants-opposite party.
4. Presenting the case on behalf of the plaintiff-petitioner, Mr. G.C. Phukan has submitted that in the present case, the defendants failed to file their written statement within the period of 90 days from the date of service of summons on them and, in such circumstances, the learned trial court ought to have pronounced the judgment in the suit in terms of Order 8, Rule 10 and ought not to have accepted the written statement filed by the defendant No. 2.
5. Controverting the submissions made on behalf of the plaintiff-petitioner, Mr. R.P. Kakoti has contended that it was on account of the fault of the Counsel for the defendants that the written statement could not be filed within time and, in such circumstances, the learned trial court was not only justified in law in accepting the written statement, but also acted correctly and in accordance with law in declining to pronounce the judgment in terms of the provisions of Order 8, Rule 10.
6. Before I enter into the merit of the rival submissions made before me on behalf of the parties, it is pertinent to take note of the salient features of the law, which govern the facts of the present case. For the purpose of better appreciation of the controversies raised in the present revision, the provisions of Order 8, Rule 10 are reproduced herein below:
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.
7. What is, now, of great, relevance to note is that Order 8, Rule 1 as well as Order 8, Rule 10 of the Code, which warrant filing of written statement within a period of 90 days from the date of service of summons on the defendant, are part of the procedural law. The procedural law is handmaid of justice and cannot override the necessity to do justice between the parties to the suit. No part of the procedural law and not even Order 8, Rule 1 or Order 8, Rule 10 can, in the absence of any explicit legislative intendment, be treated to have disempowered the court or can be said to stand in the way of the court to make exception in an appropriate case and accept a written statement beyond the period of 90 days, though, ordinarily and except in rare and compelling circumstances, acceptance of written statement beyond the requisite period of 90 days is not permissible.
8. The Apex Court has made it clear in Kailash v. Nankhu and Ors. , that ordinarily, the time schedule prescribed by Order 8, Rule 1. has to be honoured, that a court, may, for reasons to be recorded, in writing, by way of exception, extend the prescribed period of 90 days if the court is satisfied, on a prayer made, in writing, by the defendant, that the circumstances were exceptional, occasioned by reasons beyond the control of the defendant, such extension was required in the interest of justice and grave injustice would be occasioned if the time was not extended. This aspect of law becomes transparent, when one takes note of the observations made in Kailash (supra), which run thus, “27. Three things are clear. Firstly, a. careful reading of the language in which Order 8, 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 us provided for. Secondly, the nature of the provision contained in Order 8, Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order 8, 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.
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 though 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….
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 defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the dale 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 made because the circumstances were exceptional, occasioned by reasons 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.
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 therefrom 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.
9. Making it explicit that all the rules of procedure are the handmaid of justice and unless compelled by express and specific language of a statute, the provisions of the Code and of other procedural enactments ought not to be construed in a manner, which would leave the court helpless to do what is necessary, in the ends of justice, to meet extraordinary situations, the Supreme Court, in Smt. Rani Kusum v. Smt. Kanchan Devi and Ors. reported in (2005) 5 SCC 705, observed as follows:
9. Order 8, Rule 1 after the amendment 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. Further, the nature of the provision contained in Order 8, Rule 1 is procedural. It is not a part of the substantive law. Substituted Order 8, Rule 1 intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to 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. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried.
10. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of procedural law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.
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13. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. See Blyth v. Blyth 1966 (1) All ER 524 (HL). A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed see Shreenath and Anr. v. Rajesh and Ors. .
14. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.
10. Reminding the courts that the rules of procedure are made to advance the cause of justice and not to defeat it, the rules of procedure are the handmaid of justice and not its mistress, construction of a rule or procedure, which promotes justice and prevents miscarriage, has to be preferred and. that 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 8, Rule 1, the Apex Court, in Salem Advocate Bar Association, T.N. v. Union of India , laid down that the ‘time’ can be extended only in exceptionally hard cases. This is clear from the observations made, thus, “20. The use of the word “shall” in Order 8, 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 if winch 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 of procedure are the handmaid of justice and not its mistress, in the present context, the strict interpretation would defeat justice.”
21. In construing this provision, support can also be had from Order 8, 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 the 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 the 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 8, Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 Order 8, the court in its discretion would have the power to allow the defendant to file written statement even after expiry of the period, of 90 days provided in Order 8, Rule 1. There is no restriction in Order 8, 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 provisions of Order 8, Rule 1 providing for the 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 8, Rule 1.
11. Having taken note of its decisions in Rani Kusum v. Kanchan Devi , Salem Advocate Bar Association v. Union of India reported in (2005) 6 SCC 344, Kailash v. Nankhu , the Supreme Court, in Shaikh Salim Haji Abdul Khayumsab v. Kumar and Ors. , has reiterated what already stood clarified, in Kailash (supra), Rani Kusum (supra) and Salem Advocate Bar Association (supra), as regards the ambit of Order 8, Rule 1.
12. What crystallizes from the above discussion is that while it is necessary that a defendant is made to file written statement within, at best, the extended time of 90 days from the date of service of the summons, the courts do have the power, in an appropriate case, to accept the written statement beyond the period of 90 days, though such acceptance is not possible except in rare cases and special circumstances.
13. Bearing in mind what role a procedural law plays in determination of a his brought before a civil court and also keeping in view the position of law that though, ordinarily, the time schedule of 90 days prescribed by Order 8, Rule 1 has to be followed and the legislative intendment reflected by Order 8, Rule 1 cannot be allowed to be easily defeated, yet the court is not, in an appropriate case, wholly powerless from accepting a written statement beyond the requisite period of 90 days if the defendant can convincingly show that the failure to file written statement was for reasons beyond the control of the defendant and that in the given facts and circumstances of a case, extension of time beyond the prescribed period of 90 days is required to be granted in the interest of justice or else gross injustice would be occasioned thereby, let me, now, turn to Order 8, Rule 10.
14. It is worth noticing that under Order 8, Rule 10, while the court has been empowered to pronounce judgment if the defendant fails to file written statement within the time permitted or fixed by the court, the Code has at the same time, given the power to the courts to make such other order(s) in the suit as the courts may think fit. Thus, while empowering the court to pronounce judgment in the suit, when the Code gives the court the power to pass any other order in the suit, it logically follows that notwithstanding the use of the expression “the court shall pronounce the judgment”, the court has the discretion, in an appropriate case, not to pronounce judgment and pass such other order(s) as the facts and circumstances of a given case may warrant. That the provisions of Order 8, Rule 10 are not mandatory is clear from the observations, made in Salem Advocate Bar Association (supra), which run as follows:
21. In construing this provision, support can also be had from Order 8, Rule 10 which provides that where any party from whom a whiten 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 the 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 the 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 8, Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10, Order 8, the court in its discretion would have the power to allow the defendant to file written statement even after expiry of the period of 90 days provided in Order 8, Rule 1. There is no restriction in Order 8, 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 provisions of Order 8, Rule 1 providing for the 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 8, Rule 1.
15. Otherwise also, it will be paradoxical to contend that while the court has the jurisdiction to allow a defendant to file his written statement beyond the period of 90 days in an appropriate case, the court would have no discretion but to pronounce judgment on the failure of the defendant to file written statement within the time allowed or fixed by the court. Considered thus, it is abundantly clear that the court does have the jurisdiction, under Order 8, Rule 10, to pronounce judgment if the written statement has not been filed within the time fixed or allowed by the court and, at the same time, the court has also the discretion to accept written statement beyond the period of 90 days from the date of service of summons on the defendant.
16. Bearing in mind the position of law as indicated hereinabove, when I turn to the facts of the present case, what becomes glaringly noticeable to the eyes is that the Code of Civil Procedure (Amendment) Act, 2002, has come into force with effect from 1st July, 2002, whereas the present suit was instituted on 4th December, 2001. It is, thus, clear that at the time, when the suit was instituted, the Code of Civil Procedure (Amendment) Act, 2002, was not in force. It is in the backdrop of this crucial factor that the present revision needs to be considered.
17. It is true, as pointed out by Mr. G.C. Phukan, that in the case at hand, defendant No. 2 entered appearance through his counsel and filed, as early as on 28.10.2002, a petition seeking time to file written statement, the written statement was not filed as late as on 31.10.2003. It is, however, also true that on a petition filed, on 31.10.2003, by the learned Counsel for the defendant No. 2 seeking further time to file written statement, the learned trial court passed an order, on 31.10.2003, allowing time till 12.12.2003 to the defendant No. 2 to file written statement. In the petition, which was filed on 31.10.2003, seeking time to file written statement, it was clearly mentioned that the written statement had already been prepared, but due to ill-health of the defendant concerned, the defendant could not come to the court and consequently, the written statement could not be filed. The facts, so stated, in the said petition, were never disputed or controverted by the plaintiff at any stage.
18. Situated, thus, it is clear that on 31.10.2003, written statement of the defendant concerned was ready, but the same could not be filed due to the fact that the defendant was lying ill. However, on the next date, i.e., on 12.12.2003, when the suit was taken up for order, learned Counsel for the defendant No. 2 sought to retire from the suit on the ground that he had not been contacted by the defendant concerned. On the submission, so made, the learned trial court directed, on 12.12.2003, to issue notices to the defendants. On the following date, i.e., on 19.1.2004, the learned trial court, having found that the report of service of summons on the defendant No. 1 had not been received, adjourned the suit for appropriate order till 20.2.2004 and, on 20.2.2004, the learned trial court drew presumption of service of summons on the defendant No. 1 and, thus, without determining the question as to whether summons had really been served on defendant No. 1 or not, and whether defendant No. 2 has been served with the notice informing him that his counsel seeks to retire from the suit, the learned trial court fixed the suit for hearing on 10.3.2004 and on the date so fixed, the defendant No. 2 filed a petition praying for accepting his written statement. This prayer was objected to by the plaintiff and, in course of time, the plaintiff also filed a petition urging the court to pronounce judgment in the suit in terms of Order 8, Rule 10.
19. If the chronology of events pointed out hereinabove are dispassionately considered, it becomes clear that there is absolutely no finding by the learned trial court that the summons issued to the defendant No. 1 stood served on the defendant No. 1. As far as defendant No. 2 was concerned, his written statement, as the petition, dated 31.1.2003, indicates was already prepared. This apart, there is nothing in the materials on record showing that the defendant No. 2 was absent on 20.2.2004 knowing the fact that his counsel sought to retire from the suit. In such circumstances, the learned trial court could not have treated the summons served on the defendant No. 1 nor could it fix the suit for ex parte hearing against the defendants without determining the question as to whether the notice of withdrawal of the counsel stood served on the defendant No. 2 or not.
20. In the backdrop of the facts indicated above, when the learned trial court has with the help of the impugned order, dated 21.6.2004, decided to accept the written statement, it becomes abundantly clear that the learned trial court was acting within the ambit of its discretion in accepting the written statement and in declining to pronounce the judgment in terms of Order 8, Rule 10. Exercise of such discretion, when the learned trial court had the jurisdiction, in the matter, cannot be interfered with by a revisional court in exercise of its power under Section 115 of the Code. When a subordinate court has the discretion under the law to accept, in an appropriate case, written statement beyond the ordinarily, permissible limit of 90 days from the date of service of summons and when the trial court exercises its discretion in a case, which warrants exercise of such a power, the revisional court cannot interfere with such exercise of discretion. Even if there were two views possible in a case and the trial court adopts one of such views, it would not be legally permissible for the revisional court to substitute its views in place of the views formed by the trial court. In the present case, it is glaringly noticeable to the eyes that in the facts and circumstances of the present case, the learned trial court had the discretion to accept or not to accept the written statement and when in such a case, the learned trial court has accepted the written statement, exercise of such jurisdiction cannot be held to be an exercise of power with material irregularity, attracting interference by the High Court in exercise of its powers under Section 115 of the Code.
21. For what have been discussed and pointed out above, I do not find any merit in the present revision and the same shall accordingly stand dismissed.
22. In view of the fact that the suit has been pending for a long time and the same needs expeditious disposal, it is hereby directed that the learned trial court shall deal with the suit expeditiously and dispose of the same, preferably, within a period of three months from the date of receipt of this order along with the record of the suit and, if need be, the learned trial court shall, for this purpose, hold day-to-day hearing in the suit.
23. Send back the LCRs along with a copy of this order.