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SCA/9159/2005 21/ 21 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9159 of 2005
with
CIVIL
APPLICATION No. 4636 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE C.K.BUCH
==============================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
==============================================================
VIDECON
NARMADA ELECTRONICS LTD & 1 - Petitioner(s)
Versus
NAVBHARAT
FERRO ALLOYS LTD & 1 - Respondent(s)
==============================================================
Appearance
:
MR
RK MISHRA for
Petitioner(s) : 1 - 2.
MR KM THAKAR WITH MISS ANAR PARIKH FOR M/S
TRIVEDI & GUPTA for Respondents.
==================================================================
CORAM
:
HONOURABLE
MR.JUSTICE C.K.BUCH
Date
: 07/09/2005
COMMON
ORAL JUDGMENT
Heard
Mr.R.K. Mishra, learned counsel appearing for the petitioners and
Mr.K.M. Thakar, learned counsel appearing with Miss Anar Parikh,
learned counsel on behalf of M/s.Trivedi and Gupta for the
respondents.
Invoking
jurisdiction of this Court under Article 227 of the Constitution of
India , the petitioners-orig.defendants of Special Civil Suit No.97
of 1997 have prayed that this Court should exercise powers and
should quash and set aside the order dated 16th April,
2005, passed below Exh.103 by the ld.Civil Judge (S.D.) and permit
the petitioners-orig.defendants to submit their written statement
in the Suit pending with the Court. The application Exh. 103 was
submitted by the petitioners-orig.defendants stating that due to the
mistake committed, the petitioners could not submit their written
statement and, therefore, they may be permitted to file their
written statement. The mistake in the application has been explained
by way of an affidavit dated 01st October, 2003 of one
Shantilal Ganeshbhai Prajapati, wherein the deponent has stated that
he, being a clerk of the advocate of the concerned matter, has erred
in not submitting the written statement in the Suit i.e. Special
Civil Suit No.97 of 1997 and, therefore, it is the say of the
present petitioner that the ld.Civil Judge accepting the explanation
ought to have extend the time to file the written statement and
ought to have permitted the petitioners as the amount involved is
very high and the dispute centres around number of controversial
issues and non-availability of written statement by the petitioners
may cause serious prejudice to them. The Court has admitted this
petition and after admission of the petition, the petitioners have
prayed by way of abovementioned Civil Application that till hearing
and disposal of the present petition, the proceedings of Special
Civil Suit may be stayed. But as today, the Court has heard the
submissions of the learned counsel appearing for the parties in
detail, both these proceedings i.e. Special Civil Application as
well as Civil Application are being disposed of by this common
judgment and hence, this judgment.
For
the sake of brevity and convenience, I would like to quote main
reliefs as prayed for in petition in paragraph no.8, which are as
under :
?S8(A) Your
Lordships may be pleased to quash and set aside the order below
Exh.103 passed in the Special Civil Suit No.97/1997 vide
Annexure-??D?? dated 16.4.2005 passed by the Second Joint Civil
Judge (S.D.), & J.M.F.C., Bharuch.
8(B) Your
Lordships may kindly be pleased to pass any other further order/s as
are deemed fit, just and proper in the facts and circumstances of the
case and in the interest of justice.??
At
one point of time, Mr.R.K. Mishra, learned counsel appearing for the
petitioners, has submitted that while permitting the present
petitioners this Court may award exemplary costs against the present
petitioners and the same may be even more than Rs.50,000/-. But a
mistake committed by an advocate or his clerk should not result into
utter miscarriage of justice. Mr.R.K. Mishra has taken me through
the order under challenge and the nature of dispute between the
parties; especially the decision in the case of Kailash
v. Nanhku and others, reported in 2005 AIR SCW 2346.
Mr.Mishra has taken me through the relevant paragraphs of the said
decision and has read relevant head-notes ?SE??, ?SF??, ?SG??,
?SH??, ?SI??, ?SJ??, ?SK?? and ?SL?? of the cited decision
and has hammered that the embargo in Order 8 Rule 1 created by the
amended Code of Civil Procedure should not be construed as a
mandatory scheme and as observed by the Apex Court, it may be held
to be a directory in the background of the facts and circumstances
of the present case and the petitioners may be permitted to submit
the written statement. The Apex Court in the decision of the Kailash
(supra) has summarized the conclusion in paragraph:46 of the
decision. I have carefully gone through the same. With a view to
appreciate and elaborate the submissions made by Mr.R.K. Mishra, I
would like to reproduce certain portions of the order under
challenge because while exercising the jurisdiction vested with the
Court under Article 227 of the Constitution of India, the Court
shall have to reach to a finding that there is an element of either
perversity or patent illegality in the finding or if the finding is
not reversed then gross injustice would be caused to a party
approaching Court. The ld.Civil Judge while rejecting the
application Exh.103 has narrated some details referring to the dates
which are found relevant by him. I would like to reproduce some of
the portion of the order under challenge, which reads as under :
?S4. If
we read Exh.103 was filed on 10.9.2003. In this application only one
reason for not filing written statement has been given by the
defendant and that is mistake (Sharat Chuk). By what kind of mistake
written statement was not file within time that has not been
clarified by the defendant. Surprisingly, after filing this
application at Exh.103 on 10.9.2003, an affidavit at Exh.107 dated
01.10.2003 I.e. after 20 days was produced on record. This affidavit
has been sworn in by Shantilal Ganehsbhai Prajapati. It is declared
by him that he is Advocate’s clerk and earlier a written statement
was filed on behalf of the Defendant Videocon Company in the another
suit, but by misunderstanding it was filed in this suit and
accordingly due to his mistake and negligence the written statement
was not filed. Further, he has stated that he has put note on the
brief that written statement has been filed. This happens due to his
mistake and negligence and now came ot the knowledge of the Advocate,
therefore, at present written statement has been filed. Now, if we
compare the contentions of Exh.103 and 106, there is no consonance
between both. Nothing he has stated in application Exh.103 that
written statement was not filed due to the mistake and negligence of
the Advocate’s clerk. Even no facts as to filing of written statement
of the other suit has been contended in this application. So, it
appears that after filing an application at Exh.103, this affidavit
with a view to support the application has been filed by Shantilal
Ganeshbhai Prajapati. There is no statement in application whether
Mr.Shantilal Ganeshbhai is registered clerk of an Advocate for the
Defendant Mr.R.D. Purohit. He has not produced his Identity Card or
his registration certificate along with the affidavit…. .
5. …
Learned Advocate for the Defendants has placed reliance on 1984
Supreme Court, Page-41- Smt. Lachi Tewari and Others, Appellants V/s
Director of Land Records and Others, Respondents. In this case, the
petition for restoration was rejected due to the absence of the
petitioner. It was held that under our present adversary legal
system, where the parties appear through their Advocates, the
obligation of the parties is to select his advocate, brief him, pay
the fees demanded by him and then trust the Learned Advocate to do
the rest of the things The party may be a villager or may belong to a
rural area and may have no knowledge of the Court’s procedure. After
engaging a lawyer, the party may remain supremely confident that the
lawyer will look after his interest. In the case before me, the
Party is a Company. Even Company has Law Officer and they are looking
after all the Legal proceeding on behalf of the Company. Therefore,
here in the case before me, the Defendant is not a villager or belong
to a rural area, or having no knowledge of the Court’s procedure.
Further, in the case before me, the matter has not been dismissed in
absence of the Advocate for the defendant. On the contrary, Learned
Advocate for the defendant has already cross-examined the Plaintiff
as well as Witness…..
XXX XXX XXX XXX
7. …
In all the above referred judgments, it is held the right of filing
the written statement has been forfeited after the first days of
hearing. The Defendant should not be permitted to earn premium on its
lethargic and insufficiency. The Court can not exercise its
discretion to allow the Defendant to file written statement who
failed to show on sufficient ground for not filing written statement
within time and if the Court come to the conclusion that final order
to be given for filing written statement, an amount claimed in the
suit should be ordered to be deposited. Further, when the Defendant
has got opportunity of cross-examination the plaintiff or his
witnesses, he will not suffer any damage or no injustice caused to
him. If we take in to consideration the ratio laid down in all above
referred judgments, it becomes clear that there must be proper and
sufficient reason for not filing written statement in time. In the
case before me, time to file written statement was already over
before 5 years. Thereafter also defendant has not produced his
written statement. The plaintiff has produced oral evidence as well
documentary evidence in the suit. Therefore, now if defendant
permitted to file written statement the Plaintiff will have no
opportunity to give evidence regarding contentions of the written
statement. In that circumstances, I do not think it proper to permit
to defendant to produce his written statement. In the discussion
above, I find no substance in the application, there is no sufficient
ground for not filing written statement for such a long period of
more than 5 years.
8. …
The question arise that whether the amended provision of Order-8,
Rule-1 applied to the case before me? This case was instituted in
1997 and amended provision has no retrospective effect, therefore, it
will not be applied, considering the date of service of summons, but
amended provisions of Order-8, Rule-1 become applicable to all Civil
Suits from 01.07.2002 and therefore, after that date no written
statement can be filed after the lapse of statutory period. The Civil
Court will have no discretion to permit such written statement to be
taken on record filed after prescribed period. In this view of the
matter also the Court has no discretion to permit belated filing of
written statement i.e. after period fixed by the statute, 90 days.??
Therefore,
it is difficult for this Court to say that the application Exh.103
has been dismissed in a cryptic manner and without assigning
detailed reasons. On the contrary, it emerges that the learned Judge
has considered all relevant aspects including one fact that the day
on which the right to file written statement was closed, newly
amended Rule 1 of Order 8 of the Code of Civil Procedure was not in
operation but after closure of the evidence of the plaintiff and
after 01st July, 2002, the day on which the amended
provision of Rule 1 of Order 8 of the Code of Civil Procedure came
into operation, certain dates were granted to the defendant so that
he can produce his side of evidence and thereafter, on 10th
September, 2003, the application Exh.103 came to be filed and that
too with a small fake reason that the defendant should be permitted
to file written statement as because of some mistake, the
defendant-company could not file written statement.
The
said application Exh.103 does not disclose the name of the clerk who
committed mistake. It is not even explained as to which is the
other suit in which the defendant-company had filed written
statement by mistake. Even today Mr.R.K. Mishra was not able to
point out this aspect when specific query was raised during the
course of hearing. This Court cannot ignore the fact that an
advocate gets up to cross-examine the plaintiff or its witnesses in
a contested matter involving huge amount, does not have a written
statement in his hand. How an advocate for the defendant can
cross-examine the plaintiff unless he is aware about the stand of
the plaintiff as party defendant. So it will be difficult for this
Court to believe that till September, 2003, the day on which the
matter was to be argued finally as to the evidence of the
defendant’s side was ordered to be closed, the learned counsel for
the defendant came to know that his clerk has committed mistake in
not filing the written statement and has put a written endorsement
on the docket that the written statement has been filed in the
present suit i.e Special Civil Suit No.97 of 1997. So this is a
case, wherein the defendant is requesting this Court to permit him
to file a written statement under a falsehood. At this stage, I
would like to reproduce the relevant paragraph of the decision in
the case of Kailash (supra) where the Apex Court has observed as
under :
?S41. Ordinarily,
the time schedule prescribed by Order VIII, 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 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 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 VIII, 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.
42. 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 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.
43. 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, the defendant shall 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 asking and (ii) to compensate
the plaintiff for the delay and inconvenience caused to him.
44. However,
no straitjacket formula can be laid down except that the observance
of time schedule contemplated by Order VIII Rule 1 shall be the rule
and departure therefrom an exception, made for satisfactory reasons
only. We hold that Order VIII Rule 1, though couched in mandatory
form, is directory being a provision in the domain of processual
law.??
The
submission advanced by Mr.Mishra that this Court by passing an order
to ditter the petitioner and to compensate plaintiff, can pass and
should pass appropriate orders permitting the petitioner-defendant
to file written statement is not found sustainable because this is
not a case of some delay caused in filing the written statement on
account of no fault of the otherside.
For
the sake of argument if the say of Mr.Mishra is accepted then the
implied effect would be very serious and it may protract the hearing
of the Civil Suit which is pending since 1997. I am told by the
learned counsel appearing for respondent that after completion of
the evidence of the plaintiff’s side, as the ld.Civil Judge was not
dealing with the matter meticulously, the respondent-orig.plaintiff
was compelled to approach this Court by moving a petition i.e.
Special Civil Application No.13367 of 2005. It is submitted that
because of the orders passed by this Court in the said petition, the
ld.Civil Judge started further proceedings. Now if this Court
grants permission to file a written statement, it may lead to
recasting of issues framed and some compulsion on the plaintiff to
lead evidence to meet with the issues that may be framed on account
of written statement that may be filed by the otherside and it also
shall automatically give right to the defendant to lead evidence
after the closure of such right. The case before the Court in
Kailash (supra) is a case of election and the delay was of only 05
days after 90 days. In the present case, there is no element of
violation of principles of natural justice because the defendant in
the present case with the reasons best known to the company has not
cared to even watch the proceedings of the Suit of a very huge
amount. Ultimately, the constituted attorney or authorised person
could have informed the defendant-company that he has never been
called in the Suit to file written statement either by the advocate
or by the officer attending the legal matters in the Court of law.
This Court even cannot ignore that the xerox copy of the written
statement shown to the Court bears the date 10th
September, 2003. So it would be difficult for this Court to accept
that the same was ready and could not be tendered in time before the
Court because of some mistake committed by the clerk.
In
view of above discussion and observations, it appears that the
impugned order passed by ld.Civil Judge below application Exh.103 is
absolutely legal and no judicial review or interference is
warranted. The petition, therefore, is hereby dismissed and Civil
Application praying for interim relief cannot survive and therefore,
the same is also hereby dismissed. The interim relief granted
earlier stands vacated so far as Civil Application is concerned.
Rule is discharged in both the matters.
(C.K.
Buch, J)
Aakar
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