?IN THE HIGH COURT OF JUDICATURE AT MADRAS %DATED: 13/04/2009 *CORAM THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN +CRP.PD.1420 of 2005 #U.Chandraprakasam $S.Krishnan !For Petitioner: Mr.P.B.Balaji ^For Respondent: No Appearance :ORDER
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.04.2009
Coram
The HONOURABLE MR.JUSTICE K.K.SASIDHARAN
C.R.P.(PD)No.1420 of 2005
and
C.M.P.No.17165 of 2005
1.U.Chandraprakasam
2.Malies Constructions
rep. by Proprietrix,
Mrs.Nagamalleswari : Petitioners
vs.
1.S.Krishnan
2.K.Bhavani
3.K.Kavitha
4.Kannan
5.K.Valarmathi, S.K.Murugan
6.S.K.Ugaparameswari : Respondents
PRAYER:- Civil Revision Petition against the order dated 21.09.2005 in I.A.No.5757 of 2005 in O.S.No.5269 of 2004 on the file of V Assistant Judge, City Civil Court, Madras.
For Petitioners: Mr.P.B.Balaji
For Respondents: No Appearance
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ORDER
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This Civil Revision Petition is directed against the order dated 21.09.2005 in I.A.No.5757 of 2005 in O.S.No.5269 of 2004 on the file of V Assistant Judge, City Civil Court, Chennai.
2. The suit in O.S.No.5269 of 2004 has been preferred by the respondents praying for a decree of permanent injunction restraining the revision petitioners, their men and servants from trespassing or constructing any superstructure in the suit property. In the said suit, the petitioners have entered appearance. However, written statement was not filed on time and as such, they were set ex parte on 31.01.2005.
3. Subsequently, the petitioners filed an application in I.A.No.5757 of 2005 to set aside the ex parte order dated 31.01.2005. Along with the said application, they have also filed written statement.
4. In the affidavit filed in support of the application filed under Order VIII Rule 9 of the Code of Civil Procedure, they have detailed the reason for the delay in filing the written statement. According to the petitioners, an Advocate Commissioner was appointed in the matter as per order in I.A.No.17622 of 2004 and the Advocate Commissioner informed the petitioners that he would inspect the property on 29.01.2005. However, subsequently, they were informed of the postponement of the inspection and as such, the petitioners were under the bona fide impression that the suit would be proceeded only after filing the commissioner’s report. It was only on verification of the “A” diary, the petitioners came to know that they were set ex parte on account of their failure to file written statement on time.
5. In the counter affidavit filed on behalf of the respondents, it was their contention that the matter was periodically adjourned for the purpose of filing written statement. On 31.01.2005, there was no representation on behalf of the petitioners and as such, the learned trial Judge had no other option than to declare the petitioners ex parte. According to the respondents, as per the amended provisions of the Civil Procedure Code, written statement has to be filed within ninety days and since the petitioners failed to file the written statement within the time granted by the statute, the learned trial Judge was justified in passing the order declaring them ex parte.
6. The matter was considered by the learned trial Judge and he was of the opinion that the written statement has to be filed within the outer time limit as prescribed under Order 8 Rule 1 of the Code of Civil Procedure. According to the learned trial Judge, the petitioners received summons on 30.10.2004 and as such, the ninety days time prescribed for filing the written statement expired on 31.01.2005. Since the written statement was not filed on or before 31.01.2005, being the outer time limit of ninety days, the learned trial Judge has no other option than to set the petitioners, being the defendants in the suit, ex parte and accordingly, the application was dismissed.
7. The existing provision regarding filing of written statement in the Civil Procedure Code was substituted by way of amendment, which came into force on 01.07.2002. As per the substituted provision, the defendant was expected to file the written statement within 30 days from the date of service of summons. However, the trial Court was given the discretion to receive the written statement beyond the period of 30 days and for the purpose of exercising such discretion, the defendant was obliged to satisfy the trial Court about the reasons for such delay. The reason so given by a defendant in support of his application to condone the delay has to be considered by the Court and an order should be passed with reasons.
8. Since the Civil Procedure Code has given a discretion to the trial Court to receive the written statement filed beyond 30 days, such discretion has to be exercised judiciously and in accordance with the legal principles. There is no straight jacket formula in such cases. The reasons put forth by the defendant for condoning the delay has to be considered on the facts and circumstances of the case. The nature of the suit, the defence put up by the defendant, the possible prejudice, which would be caused to the defendant, in the event of rejecting the application to file the written statement are all relevant considerations for deciding the issue as to whether the written statement has to be received after 30 days.
9. In case the delay was not condoned, the defendant would be thrown out at the threshold itself, thereby denying him the opportunity of taking part in the legal proceeding by defending the suit. It is always possible for the Court to take note of the delaying tactics of the defendant, which would be prejudicial to the interest of the plaintiff. Therefore, the order to be passed by the trial Court in an application for condonation of delay must take into consideration all the aspects of the matter.
10. Since Order 8 Rule 1 of the Civil Procedure Code is only a procedural provision, in the normal circumstances, it should be interpreted liberally. The reason for incorporating such provision with a cut of period, for filing written statement, was only to avoid the delay in disposal of cases. It was not intended to punish the defendant for not filing the written statement within the time prescribed. The disposal of the suit by giving an opportunity to both the parties should be the rule and the exparte proceeding is only an exception. Nobody should be denied their right to participate in the justice delivery system. The plaintiff would be getting the decree on account of the failure of the defendant to file the written statement within the statutory period and while granting such a default decree, the Court was not adjudicating the merits of the matter. While resorting to the procedure of exparte proceedings, the trial Judge would be denied of the opportunity to consider the merits of the defendant’s claim. Therefore, the attempt should be to strike the balance.
11. while considering an application for condoning the delay in filing written statement, the trial Court should also consider the possible prejudice to the plaintiff. Therefore, while granting the prayer to condone the delay, for the purpose of receiving the written statement, the Court should also try to compensate the plaintiff on account of the delay caused at the instance of the defendant.
12. In Sambhaji vs. Gangabai [2008(15) Scale 522], the Supreme Court considered the scope and ambit of Order 8 Rule 1 of the Civil Procedure Code with reference to the 1999 amendment Act as well as the judgment in Salem Advocate Bar Association vs. Union of India [2003(1) SCC 49] and observed thus:-
“8.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 the petitioners approaching the court for quick relief and also 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.”
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13. It is also to be noted that though the power of the court under the proviso appended to Rule 1 of Order 8 is circumscribed by the words “shall not be later than ninety days” but the consequences flowing from non-extension of time are not specifically provided for though they may be read by necessary implication. Merely, because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form.”
13. The object of prescribing a procedural provision was indicated by the Supreme Court in Sambhaji’s case cited supra thus:-
“9.All the rules of procedure are the handmaids of justice. The language employed by the draftsman of processual 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 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.”
14. In R.N.Jadi & Brothers vs. Subhashchandra [2007(9) Scale 202], while interpreting Order 8 Rule 1 of the Civil Procedure Code, the Supreme Court indicated that a legal provision, though couched in a negative language implying mandatory character, could be declared to be of directory in nature, keeping in view the entire context, in which the provision came to be enacted.
15. In R.N.Jadi’s case cited supra, while declaring the law with regard to the power of the trial Court to extend the time for filing written statement, His Lordship MR.JUSTICE P.K.BALASUBRAMANYAN, in His Lordship’s concurring judgment, observed thus:-
“25(6). A dispensation that makes Order VIII Rule I directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasize that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order VIII Rule I must be adhered to and that only in rare and exceptional cases, the breach thereof will be condoned. Such an approach by courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in courts. The lament of Lord Denning in ALLEN vs. SIR ALFRED McALPINE & SONS [(1968) 1 All E.R.543] that law’s delays have been intolerable and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times?”
16. The learned Judge rejected the application submitted by the petitioners on the ground that there was no specific reason mentioned in the application for extension of time for filing written statement. The summons was served on 30.10.2004 for appearance on 16.11.2004. As per their request, adjournments were granted and it was posted on 31.01.2005 for filing written statement. Since there was no representation on behalf of the petitioners, on the date of hearing and as the ninety days time for filing the written statement has expired by 31.01.2005, the learned trial Judge was pleased to pass an order on 31.01.2005 itself to declare the petitioners exparte. In the affidavit filed in support of the application, in I.A.No.5757 of 2005, the first petitioner has stated that he was given to understand from his counsel that an Advocate Commissioner has already been examined to report about the physical features of the property and the matter would be taken up after filing the report. According to the petitioner, he was waiting for a call from his counsel about the proposed visit of the advocate commissioner and in the meantime, he came to know that defendants were set ex parte for their failure to file written statement. As per the affidavit, the matter was entrusted to a junior counsel and as he was away in Family Court, he failed to attend the Court. The petitioners have also filed the written statement along with the application.
17. According to the learned trial Judge, the petitioners were granted time to file the written statement on or before 31.01.2005. The statutory period of ninety days expires on 31.01.2005. The learned Judge appears to have taken up the matter at 05.15 p.m. on 31.01.2005 and as there was no representation on behalf of the petitioners, they were declared ex parte and an exparte decree was passed. These factual materials are available in the counter-affidavit filed on behalf of the first respondent and adopted by the other respondents. When the learned trial Judge in his discretion has granted time till 31.01.2005 to file the written statement, there was no reason to declare the petitioners exparte on 31.01.2005 itself. The learned Judge could have posted the matter on the next working day and in case it was verified from the records of the Registry that no written statement was filed till the office hours on 31.01.2005, the petitioners could have been declared exparte. It is true that the petitioners should have made arrangements for their appearance through a counsel on the date of hearing. The reason that the junior counsel was engaged in a Family Court cannot be a valid reason for their absence on the date of hearing.
18. The suit is in respect of immovable property and the relief is for a permanent injunction with respect to the property. The plaint also contains the details about various proceedings concluded earlier by way of civil suits and first appeals. Since the learned trial Judge has decreed the suit by declaring the petitioners exparte, on account of their failure to file the written statement as provided under Order 8 Rule 1 of the Civil Procedure Code, the trial Court was denied the benefit of assessing the merits of the case as projected by the respondents. There was nothing indicated in the order of the learned trial Judge to the effect that the matter was considered on merits and on evaluation of the pleadings as well as the documents produced on the side of the respondents, a decree was granted in their favour. The exparte decree referred to by the learned trial Judge in the impugned order is only a default decree without considering the matter on merits. In such circumstances, I am of the view that the learned trial Judge failed to exercise the discretion conferred on him properly and there had been a failure of justice warranting interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.
19. Accordingly, the order dated 21.09.2005 is set aside and the application in I.A.No.5757 of 2005 in O.S.No.5269 of 2004 is allowed, subject to the payment of a sum of Rs.10,000/- (Rupees ten thousand only) as cost payable by the petitioners to the respondents within a period of two weeks from the date of receipt of a copy of this order, failing which, the application in I.A.No.5757 of 2005 in O.S.No.5269 of 2004 will be dismissed without any further reference to this Court.
20. The Civil Revision Petition is allowed with the above direction. Consequently, the connected miscellaneous petition is closed.
13.04.2009
Index:Yes/No
Internet:Yes/No
K.K.SASIDHARAN, J
SML
To
The fifth Assistant Judge,
City Civil Court,
Madras.
Order made in
C.R.P.(PD)No.1420 of 2005
Dated:- 13.04.2009
