Petitioner herein has invoked extraordinary jurisdiction under Article 226 and supervisory jurisdiction vested under Article 227 of the Constitution of India, being aggrieved by the order dated 12th December 2011 passed by the learned Principal Civil Judge, Dwarka in Regular Civil Suit No. 48 of 2009.
Heard learned advocate Shri Harshil C. Dattani for the petitioner. It is the say of the petitioner that the Court below has denied the right to file written statement which was delayed by 300 days on account of sickness of the petitioner. It is also further stated that the suit, which was preferred by the present petitioner being Regular Civil Suit No. 16 of 2009, stay has been granted by the Court whereas in Regular Civil Suit No. 48 of 2009, which is being preferred as a counter-blast to the suit filed by the present petitioner, he has been denied the right of filing the written statement.
On examining the record as also considering the submissions of the learned counsel, it appears that the petitioner was hospitalized for a short duration of about a week; although his treatment, as is pointed out from record, was for nearly five to six months. However, as the Court has noted that the learned advocate appearing for the petitioner remained present continuously before the Court, he has been asked to produce evidence as well as to proceed with the matter on day-to-day basis, in the order impugned.
Learned advocate for the petitioner urged this Court to permit filing of written statement on the ground that it should be considered as an exceptional circumstances as is made out in Order VIII Rule 1 CPC which permits period of thirty days from the date of service of summons; to be extended for a period of 90 days. He also seeks to rely on the judgment of the Apex Court in case of Salem Advocate Bar Association T.N v. Union of India, reported in [(2005) 6 SCC 344], wherein it is stated that provision of Order VIII Rule 1 is directory and not mandatory in nature. Counsel also placed reliance on the decision of this Court in case of Harpalbhai Jashubhai Vala & Anr. vs. Punjbhai @ Punjabhai Kalubhai Vala & Anr., reported in [2010 (1) GLH 457] wherein Court permitted filing of written statement, holding the provision of Order VIII Rule 1 as directory and not mandatory in nature by further holding that in adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Therefore, unless compelled by express and specific language of the statute, the provisions of Order VIII Rule 1 CPC or any procedural enactment should not be construed in a manner, which would leave the Court helpless to meet extra ordinary situations in the ends of the justice.
Apex Court in Salem Advocate Bar Association [Supra] also considered the provision of Order VIII Rule 1 CPC wherein it is held that 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. Thus, it is a settled position that 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 lime of 90 days and the discretion of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the very object of speedy trial in fixing under Order VIII Rule 1.
It would be worthwhile to also refer to the case of Kailash v. Nanhku & Ors., reported in [(2005) 4 SCC 480], wherein the Apex Court has held and observed as under :-
"40. We find some merit in the submissions made by the learned counsel for both the parties. In our opinion, the solution - and the correct position of law - lie somewhere midway and that is what we propose to do placing a reasonable construction on the language of Order VIII, Rule 1.
41. Considering the object and purpose behind enacting Rule 1 of Order VIII in the present form and the context in which the provisions 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. This is more so in election disputes because by delaying the trial of election petition, the successful candidates may succeed in enjoying the substantial part, if not in its entirety, the term for which he was elected even though he may loose the battle at the end. Therefore, the judge trying the case must handle the prayer for adjournment with firmness. The defendant seeking extension of time beyond the limits laid down by the provision may not ordinarily be shown indulgence.
42. 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.
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 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, 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.
45. However, no strait-jacket 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."
In light of the discussion above, from the record, if the case of the present petitioner is examined, the Court below has noted that the learned advocate representing the petitioner remained present all throughout when the witnesses for the plaintiff had been examined. It was only after the closure of evidence from the plaintiff that a request for filing of written statement had been made putting forth the grounds as above. The Court although permitted cross examination as well as production of the documents to the present petitioner, however, it denied the right of filing the written statement, considering the extra ordinary delay as also keeping in view the fact that the learned advocate did represent the case even when the plaintiff was unwell.
Considering the reasonings as well as the circumstances which have been presented, this Court finds that ordinarily in a routine when such permission is not to be granted and only an extra-ordinary situation is pointed out, permission to file written statement beyond the stipulated period can be allowed since the provisions have been held as directory and the Court is having powers to meet with the extraordinary situations. However, here since neither of the two is brought out by the petitioner on record and the Court below has taken note of that facts appropriately, the present writ petition calls for no interference. Accordingly, the same is dismissed. It is, however, clarified that observations made in this order shall in no manner influence the trial court in conducting the matter pending before it.
{Ms.
Sonia Gokani, J.} Prakash* Top