Mandatory Time Line For Filing Written Statement Is Not Applicable To Non-Commercial Suits: Supreme Court

In a significant development, the Supreme Court most recently on January 20, 2020 in a latest, landmark and laudable judgment titled Desh Raj Vs Balkishan (D) Through Proposed LR Ms. Rohini in Civil Appeal No. 433 of 2020 [Arising out of Special Leave Petition (Civil) No. 6217 of 2019] in exercise of its civil appellate jurisdiction has clarified in no uncertain terms that the mandatory time-line for filing written statement is not applicable to non-commercial suits. It has held that as regards non-commercial suits, the time-line for written statement is directory and not mandatory. A Bench of Apex Court comprising of CJI Sharad A Bobde, Justice Surya Kant and Justice BR Gavai have held that the courts have the discretion to condone delay in filing of written statement in non-commercial suits.

To start with, the ball is set rolling in para 2 of this judgment after granting leave in para 1 by observing that, “This Civil Appeal is directed against order dated 26.11.2018 passed by the Delhi High Court whereby appellant’s revision petition against the order of the Civil Court which closed his right to file written statement under Order VIII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter “CPC”) and struck-off his defence owing to repeated delays and non-adherence of prescribed deadlines, has been dismissed.”

While dealing with the facts of the case, it is then pointed out in para 3 that, “The appellant and the respondent are brothers and own one floor each of ancestral property bearing No. 142 in Devli Village, Delhi. The ground floor was possessed and owned by the respondent, whereas the first floor was in the name of the appellant.”

While going into the nitty-gritty, it is then enumerated in para 4 that, “It has been claimed that in February 2017, the respondent approached the appellant offering to purchase the first floor of the ancestral property. Subsequently, an agreement to sell was entered into between the parties on 17.03.2017 for total consideration of Rs 7.5 lakhs, of which an amount of Rs 1 lakh was paid as earnest money to the appellant. This agreement was subsequently not honoured and a legal notice was served upon the appellant by the respondent on 13.04.2017, calling upon him to accept consideration and perform his part of the contract.”

While continuing in the same vein, it is then envisaged in para 5 that, “Claiming that the appellant was attempting to sell the suit property to third parties, the respondent later approached the Civil Court praying for a decree of specific performance of the agreement to sell dated 17.03.2017 by directing the appellant to receive the balance sale consideration and execute/register the sale deed in favour of the respondent. Additionally, the respondent sought to permanently injunct the appellant from alienating the property in favour of any third party. Alternatively, recovery of damages of Rs 2 lakhs with pendent lite and future interest @ 18% per annum was sought by the respondent.”

Illustrating further, it is then observed in para 6 that, “The appellant was served on 01.05.2017, and he appeared through counsel on 15.05.2017 wherein the Civil Court granted the appellant 30 days to file his written statement. On 17.07.2017, noting that no written statement had been filed till then, the Court granted the appellant a final opportunity of two weeks to file his written statement. On 18.09.2017, the Court observed that despite the last opportunity having been accorded more than two months ago, no written statement had been filed. Nevertheless, the Court granted another final opportunity, subject to payment of Rs 3,000 costs and the matter was posted for 11.10.2017. On this date, appellant sought multiple pass overs but his Counsel did not appear before the Court. After noticing that despite several opportunities (including one beyond the maximum period of 90 days) the appellant had failed to file any written statement or deposit costs and that the matter could not be adjourned repeatedly, the Civil Court thus closed the appellant’s opportunity of filing written statement and struck off his defence. Even on the next hearing on 03.11.2017, the appellant’s Counsel did not appear or supply a copy of the written statement to the respondent, as noted in the Trial Court’s daily order.”

What’s more, it is then pointed out in para 7 that, “The aggrieved appellant approached the High Court in revision, which noted how he had been granted repeated opportunities and yet the written statement was not filed within 120 days of notice. Relying upon the order of its co-ordinate bench in Oku Tech Pvt Ltd v. Sangeet Agarwal and Others 2016 SCC OnLine Del 6601 wherein it was held that there was no discretion with courts to extend the time for filing the written statement beyond 120 days after service of summons, the Delhi High Court summarily dismissed the petition.”

Needless to say, it is then enshrined in para 13 that, “The judgment of Oku Tech (supra) relied upon the learned Single Judge is no doubt good law, as recently upheld by this Court in SCG Contracts India Pvt Ltd. v. KS Chamankar Infrastructure Pvt. Ltd., AIR 2019 SC 2691 but its ratio concerning the mandatory nature of the timeline prescribed for filing of written statement and the lack of discretion with Courts to condone any delay is applicable only to commercial disputes, as the judgment was undoubtedly rendered in the context of a commercial dispute qua the amended Order VIII Rule 1 CPC.”

Furthermore, it is then noted in para 14 that, “As regard the timeline for filing of written statement in a non commercial dispute, the observations of this Court in a catena of decisions, most recently in Atcom Technologies Ltd. v. Y.A. Chunawala and Co., (2018) 6 SCC 639, holds the field. Unamended Order VIII Rule 1, CPC continues to be directory and does not do away with the inherent discretion of Courts to condone certain delays.”

To put things in perspective, it is then stipulated in para 15 that, “Let us, therefore, consider whether the appellant has made out a case of exercising such discretionary jurisdiction? The present civil suit had been filed by the respondent for a decree of specific performance of an agreement to sell one floor of an ancestral property located in Devli village, Delhi and permanent injunction against alienation of the same by petitioner to third parties. Counsel for respondent has not contested the non-commercial nature of the dispute, and even independently we are satisfied that the dispute does not fall within the parameters specified under Section 2(c) of the Commercial Courts Act, 2015 and in particular sub-clause (vii), as the immovable property here is not of a nature which is “used exclusively in trade or commerce”. Hence, the appellant is correct in contending that the High Court overlooked the nature of the dispute and mistakenly applied the ratio of a case rendered in light of a modified version of the Code of Civil Procedure, which would only be applicable to commercial disputes.”

As it turned out, para 16 then minces no words to say: “However, it would be gainsaid that although the unamended Order VIII Rule 1 of CPC is directory, it cannot be interpreted to bestow a free hand to on any litigant or lawyer to file written statement at their own sweet-will and/or to prolong the lis. The legislative objective behind prescription of timelines under the CPC must be given due weightage so that the disputes are resolved in a time-bound manner. Inherent discretion of Courts, like the ability to condone delays under Order VIII Rule 1 is a fairly defined concept and its contours have been shaped through judicial decisions over the ages. Illustratively, extreme hardship or delays occurring due to factors beyond control of parties despite proactive diligence, may be just and equitable instances for condonation of delay.”

While launching a scathing attack on the appellant’s nonchalant approach, the Bench then minces no words to hold in para 17 that, “However, it is clear from the facts on record that numerous opportunities had been accorded to the appellant. He was served on 01.05.2017 and entered appearance through counsel on 15.05.2017. As per Order VIII Rule 1 of CPC, the appellant ideally sought to have filed his written statement by 31.05.2017; and at the very latest by 30.07.2017. In addition to two separate deadlines for filing of the written statement within the 90-day timeframe prescribed by the ‘original’ Order VIII Rule 1, the Civil Court even post expiry of the 90-day period again gave one last and final opportunity on 18.09.2017 subject to payment of costs of Rs 3,000. None of these deadlines were complied with. Even on 11.10.2017, when the Court finally closed the appellant’s ability to file the written statement and struck-off his defence from the record, no attempt was made to comply with the process of law.”

Not stopping here, it is then further pointed out in para 18 that, “It was only on 02.11.2017, after a delay of 95 days post the maximum extendable period under the Proviso of Order VIII Rule 1, CPC that the appellant claimed to have filed his written statement. Curiously however, even by the next hearing on 03.11.2017, the appellant had failed to provide a copy of the written statement to the respondent as had been noted by the Civil Court.”

Most significantly, it is then made amply clear by the Bench in para 19 that, “The only defence taken to these repeated and blatant lapses is that the appellant’s counsel was not turning up. No attempt has been made to even proffer a reasoned justification or explanation, and it is clear that appellant is seeking condonation in a casual manner. This ought not to be permitted or encouraged. Courts must act stringently to ensure that all proceedings are decided within reasonable time, and it is but the duty of the judicial system to cultivate a culture of respecting deadlines and time of the Court, its officers as well as of adversaries.”

No less significant is what is then pointed out in para 20 that, “Routine condonations and cavalier attitudes towards the process of law affects the administration of justice. It affects docket management of Courts and causes avoidable delays, cost escalations and chaos. The effect of this is borne not only by the litigants, but also commerce in the country and the public-in-general who spend decades mired in technical process.”

Of course, it is then rightly held in para 21 that, “It is obvious from the record that nothing prevented the appellant from filing the written statement through counsel or in person. He has, thus, failed to give any cogent reason for the delay and is unable to satisfy due diligence on his part though he is right in his submission that the High Court erroneously relied upon the ratio of Oku Tech (supra).”

Finally, while rendering a balanced decision, it is then held in para 22 that, “Having held so, there could be no escape but to dismiss this appeal. However, taking a lenient view given the unique circumstances of the case, and without laying down the discretion being exercised hereinafter, as a precedent, we direct that  the written statement filed by the appellant on 02.11.2017 (as claimed), be taken on record with a copy to counsel for the respondent within one week from today and further subject to payment of costs of Rs 25,000/- to the respondent.” Also, in the last para 23, it is then held that, “The orders of the courts below are thus set aside and the appeal is disposed of in the above terms.”

On the whole, it is a very well balanced and fair judgment where no room for doubt has been left on any score. The 3 Judge Bench of Apex Court comprising of CJI Sharad B Bobde, Justice BR Gavai and Justice Surya Kant have in this notable judgment left no stone unturned to make it pretty clear that the mandatory time-line for filing written statement is not applicable to non-commercial suits. It has held that as regards non-commercial suits, the time-line for written statement is directory and not mandatory. Very rightly so!

Sanjeev Sirohi

No Automatic Conviction U/s 306 IPC For Abetment Of Suicide Merely Because Accused Was Found Guilty U/s 498A IPC: SC

        Coming straight to the nub of the matter, it has to be said that the Supreme Court just recently on November 26, 2019 in a latest, landmark and extremely laudable judgment titled Gurjit Singh vs State of Punjab in Criminal Appeal Nos. 1492-1493 of 2010 has remarkably ruled that merely because an accused is found guilty of an offence punishable under Section 498-A of the Indian Penal Code and the death of the wife has occurred within a period of seven years of marriage, the accused cannot be automatically held guilty for the offence punishable under Section 306 of the IPC by employing the presumption under Section 113-A of the Indian Evidence Act. To sustain a conviction under Section 306 IPC, the Apex Court made it clear that the prosecution has to establish that some act or illegal omission by the accused has driven the deceased to commit the suicide. Very rightly so!

To start with, this commendable judgment authored by Justice BR Gavai for himself and Justice Navin Sinha sets the ball rolling by first and foremost observing in para 1 that, “These appeals by special leave challenge the judgment and order dated 20.2.2009 passed by the Division Bench of the Punjab and Haryana High Court in Criminal Appeal No. 544-DBA of 2001 and Criminal Appeal No. 959-SB of 2000. All the four accused, including the appellant herein (accused No. 3), who is husband of the deceased, were charged and tried by the learned trial Court for the offence punishable under Section 304-B and Section 498-A of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). The other accused were the father (accused No. 1), the mother (accused No. 2) and the sister-in-law (wife of brother) (accused No. 4) of the appellant. The Additional Sessions Judge, Hoshiarpur, held that the prosecution had succeeded in proving the case against accused Nos. 1 to 3 for the offence punishable under Section 498-A of the IPC but has failed to prove the case against the said accused (Nos. 1, 2 and 3) for the offence punishable under Section 304-B of the IPC. Insofar as accused No. 4 is concerned, it was held that the prosecution has failed to prove the case against her for both the offences and she was accordingly acquitted of the offence charged. The trial Judge, therefore, convicted the appellant and his father and mother for the offence punishable under Section 498-A of the IPC and sentenced them to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 4000/- each and, in default of payment of fine, to further undergo rigorous imprisonment for a period of three months.”

As a consequence what ensued then is stated in para 2 that, “Being aggrieved by the conviction and sentence under Section 498-A of the IPC, the appellant along with his parents preferred an appeal (being Criminal Appeal No. 959-SB of 2000) before the High Court. So also, the State preferred an appeal (being Criminal Appeal No. 544-DBA of 2001), being aggrieved by that part of the order by which the trial Court acquitted accused No. 4 and also acquitted accused Nos. 1, 2 and 3 for the offence punishable under Section 304-B of the IPC. The High Court upheld the conviction of accused Nos. 1, 2 and 3 for the offence punishable under Section 498-A of the IPC. It also upheld the acquittal of accused No. 4 and further held that, though the prosecution could not bring the case under Section 304-B of the IPC, the appellant herein was liable to be punished for the offence punishable under Section 306 of the IPC. The High Court maintained the order of the sentence and fine as recorded by the trial Judge for the offence punishable under Section 498-A of the IPC. For the offence under Section 306 of the IPC, the High Court sentenced the appellant herein to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 5000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of five months. Being aggrieved thereby, the present appeals are preferred by the appellant.”

To be sure, it is then elegantly observed in para 5 that, “The perusal of the record would reveal that though the appellant has disputed the date of marriage to be 04.02.1989, both the courts have disbelieved him and rightly so. The deceased died an unnatural death on 28.09.1994 by consuming poison. As such, the unnatural death occurred within a period of seven years of the marriage. The learned trial Judge has acquitted the appellant for the offence punishable under Section 304-B of the IPC since the prosecution has failed to prove the demand for dowry, while convicting him along with the parents for the offence punishable under Section 498-A of the IPC. The High Court maintained the conviction under Section 498-A of the IPC, however, it also convicted the appellant for the offence punishable under Section 306 of the IPC with the aid of Section 113-A of the Indian Evidence Act, 1872.”

More importantly, it is then rightly envisaged in para 33 that, “Applying the aforesaid principles to the present case, we find that though the prosecution is successful in proving the case under Section 498-A of the IPC, we are of the view that the prosecution has failed to prove that the cruelty was of such a nature which left no choice to the deceased than to commit suicide. The prosecution has not been in a position to place on record any evidence to establish beyond reasonable doubt that any act or omission of the accused instigated the deceased to commit suicide. There is no material on record to show that immediately prior to the deceased committing suicide there was a cruelty meted out to the deceased by the accused due to which the deceased had no other option than to commit the suicide. We are of the view, that there is no material placed on record to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising presumption.”

What’s more, it is then elaborated in para 34 stating that, “It could further be seen from the evidence on record that the time gap between the last visit of the deceased to her parents with regard to the illegal demand and the date of commission of suicide is about two months. As such, there is nothing on record to show that there was a proximate nexus between the commission of suicide and the illegal demand made by the appellant. In the case of Sanju Alias Sanjay Singh Sengar vs. State of M.P. [(2002) 5 SCC 371] this Court found that there was time gap of 48 hours between the accused telling the deceased ‘to go and die’ and the deceased ‘committing suicide’. As such, this Court held that there was no material to establish that the accused had abetted the suicide committed by the deceased.”

It cannot be lost on us that it is then pointed out in para 35 that, “Another aspect that needs consideration is that the cases wherein this Court has held that the conviction under Section 306 of the IPC was tenable though charge was only under Section 304-B of the IPC, it was found the charge specifically stated that the deceased was driven to commit suicide on account of cruelty meted out to the deceased. However, in the present case, the charge reads thus:

“That you all on 28.9.94 in the area of Village Bohan, the death of Jaswinder Kaur wife of you, Gurjit Singh and daughter-in-law of you, Gurdial Singh and Mohinder Kaur and sister-in-law of Ranjit Kaur, was caused otherwise than under normal circumstances, you all being her relatives, within a period of seven years of her marriage subjected her to cruelty and harassment for all in connection with demand for dowry and thereby committed an offence of dowry death punishable under section 304-B of the Indian Penal Code and within my cognizance.””

Needless to say, a bare perusal of para 35 would make it clear what is then mentioned in para 36 stating that, “It would thus be seen, that the charge does not state that the deceased was driven to commit suicide on account of the harassment meted out to the deceased. It also does not mention that the accused had abetted in commission of suicide by the deceased. In that view of the matter, we are of the considered view that the cases wherein conversion is held to be permissible are clearly distinguishable.”

No wonder, the Apex Court Bench then rightly held in para 37 that, “In the foregoing circumstances, the appeals are partly allowed. Conviction under Section 498-A of the IPC is maintained and the conviction under Section 306 of the IPC is set aside. The appellant is acquitted of the charge under Section 306 of the IPC.” Finally, it is then held in the last para 38 that, “The appellant is stated to be on bail, his bail bonds shall stand discharged and he is directed to surrender within four weeks for serving the remaining period of his sentence, if not already undergone.”

It is quite discernible from the above foregoing discussion that the Supreme Court while citing leading case laws like Ramesh Kumar vs State of Chhattisgarh (2001) 9 SCC 618 minced no words to conclude unambiguously that there shall be no automatic conviction U/s 306 IPC for abetment of suicide merely because accused was found guilty U/s 498A IPC by employing the presumption U/s 113-A of the Indian Evidence Act. It is imperative that to sustain conviction under Section 306 IPC, the prosecution has to establish that some act or illegal omission by the accused has driven the deceased to commit suicide. As nothing of any act or illegal omission by the accused could be proved that could be considered as having driven the deceased to commit suicide, therefore the accused conviction under Section 306 IPC is set aside even while he is held guilty under Section 498A of the IPC! Very rightly so!

Sanjeev Sirohi