1. All these petitions arise out of Regular Civil Suit No.53 of 2003 instituted by the original plaintiffs for permanent injunction restraining the defendants from dealing with or interfering in any manner with the alleged possession of the suit land for having arisen out of the orders passed by the trial Court on different applications. Parties being the same consequently all the three petitions are being decided by common judgment.
2. Special Civil Application No.3258 of 2010 challenges legality and validity of the order dated 19.11.2009 passed in restoration application No.2 of 2008 in the said suit. The said suit was dismissed for want of prosecution and was restored to file and, therefore, direction is sought to quash and set aside the order passed on 19.11.2009.
3. In Special Civil Application No.1039 of 2008 challenge is made to the order passed below Exh.53. In the said suit trial Court gave permission to the original defendants for filing written statement to the plaint. By preferring Miscellaneous Civil Application No.348 of 2010, the applicants original defendants sought review/recall of the order with further request to dismiss Special Civil Application No. 1039 of 2008.
3. Special Civil Application No. 1420 of 2012 challenges the order passed below Exh.67 by learned Principal Senior Civil Judge, Navsari under Order 6 Rule 17 of the Code of Civil Procedure praying for amendment in the said suit dated 23.9.2011.
The brief facts giving rise to these petitions, shall need to be shortly described.
4. The petitioners, legal heirs of Sureshchandra Gamanlal Chokshi are the plaintiffs who purchased the property from the respondents defendants who are the original owners. By way of a registered agreement to sale dated 6.10.1998, the petitioners received vacant and silent possession of the suit property from 4.11.1998. It is the say of the petitioners that as per the prevalent practice, on having received entire amount of consideration, the respondents executed a power of attorney in favour of one Sanjay Sureshchandra Chokshi on 6.10.1998.
5. It is the say of the petitioners that the respondents did not execute the sale deed in favour of the petitioners inspite of having received the total amount of sale consideration and, therefore, Regular Civil Suit No.53 of 2003 has been filed before the learned Senior Civil Court, Navsari for declaration and permanent injunction to restrain the respondents from interfering with the possession of the petitioners in respect of the suit property as also to restrain the respondent from transferring or alienating in any mode or manner the suit property by themselves or through agents.
6. For the suit which was filed on 9.5.2003, notice was issued and in an application for interim injunction, the respondents were directed to maintain status quo in respect of the suit property. On due appearance of the respondents, the parties entered into compromise where it acknowledged the receipt of consideration and agreed to execute the sale deed. It is the say of the petitioners that the respondents did not honour the commitment and requested for filing written statement. The respondents' rights had been closed for filing the written statement on 7.10.2004 and issues were also framed by preferring an application Exh.53. The respondents prayed for opening the right of filing the written statement. Despite the objection by its order dated 23.11.2007 learned Judge granted permission to file the written statement by imposing the cost of Rs.1000/- on the respondents.
7. By preferring Special Civil Application No.1039 of 2008, learned Single Judge issued notice and respondents did not accept the same, and hence it passed an order dated 19.3.2008 and allowed the petition by quashing such an order dated 23.11.2007.
8. On 4.1.2008, when the suit was called out the petitioners submitted an application for adjournment on the ground that it had challenged the order permitting filing of written statement. However, the Court instead of closing the stage of evidence dismissed the suit for want of prosecution.
9. The petitioners filed an application for restoration on 17.1.2008 before the Civil Court, Navsari. On 19.11.2009 Principal Senior Civil Judge ordered restoration of the suit back to the file of the Court and on 5.2.2010 the respondent requested the review/recalling of the order dated 19.3.2008 in Special Civil Application No.1039 of 2008 and the Court recalled its order with a condition on dated 22.10.2010 and awarded cost of Rs.50,000/- against the respondents directing them to pay the same within 8 weeks before the trial Court. Letters Patent Appeal was preferred being Letters Patent Appeal No. 49 of 2011 before Division Bench which partly allowed the said appeal and cost of Rs.50,000/- was reduced to Rs.30,000/-.
10. The said order of reducing the amount of Rs.30,000/- dated 19.11.2009 was passed and Special Civil Application No. 3258 of 2010 was restored to file.
11. In the meantime, the respondents also vide Special Civil Application No. 3258 of 2010 challenged the order dated 19.11.2009 restoring the suit passed by learned Principal Senior Civil Judge, Navsari.
12. It is averred that the petitioner upon realising that the respondents have not honoured the power of attorney issued by them and they were back-tracking on their commitment, filed an application Exh.67 and prayed for amending the plaint and pleaded for specific performance of the agreement to sell executed in favour of the petitioners by a registered sale deed. Such application for amendment has been rejected by learned Principal Civil Judge, Navsari vide its order dated 23.9.2011 and such order is challenged by way of Special Civil Application No.1420 of 2012.
13. Heard learned advocate Mr. Zubin Bharda for the original plaintiffs and learned advocate Mr. Ajay Mehta for the respondents (original defendants) and with their able assistance examined the material on record. Three judgments, are required to be reproduced hereunder:-
1. Salem Advocate Bar Association T.N. vs.
Union of India reported in (2005) 6 SCC 344.
2. Kailash v. Nanhku & Ors., reported in (2005) 4 SCC 480.
3. R.N. Jadi and Brothers and Ors. v.
Subhashchandra. reported in 2007(6) SCC 420.
In the case of Salem Advocate Bar Association
T.N v. Union of India(supra), 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., (supra) 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.”
Yet another judgment of the Apex Court in the case of M/s. R. N. Jadi and Brothers and Ors. v. Subhashchandra reported in 2007(6) SCC 420 observes that procedure is the handmade of justice and the Court must always ensure that substantive justice has precedence over procedural technicalities.
15. Thus taking firstly, Special Civil Application No. 1039 of 2008 it is the case of the learned advocate for the petitioner Mr. Bharda that an application Exh.53 was filed by respondents on 15.10.2007 and in a suit of the year 2003, notice was issued in the year 2003 itself, Exh.53 which came to be filed seeking permission to file written statement came to be allowed by the learned trial Judge on 23.11.2007 on a condition that original defendants (present respondents) to pay cost of Rs.1000/- to the petitioners. It is also the case of the petitioners that no grounds have been made out by the respondents herein for the Court to extend the discretionary powers of extending the period of filing of written statement beyond 90 days.
Learned advocate Mr. Ajay Mehta has stated in this regard that while denying the delay of present respondents in filing review application in the Special Civil Application No. 1039 of 2008, the Court had allowed the same on imposition of cost. However, that part is challenged before the Apex Court and the matter is still pending.
However, it has been stated before the trial Court also that the power of attorney holder of the respondents who was staying abroad was the son of one of the petitioners and thus, in collusion an attempt has been made to defeat the rights of the respondents.
16. As observed by the Apex Court and mentioned hereinabove, ordinarily no permission should be granted for filing the written statement beyond the period of 30 days and it is the discretion of the Court to extend it upto 90 days if there are justifiable reasons for so doing.
However, since this provision is held to be not mandatory and directory, the Court can exercise its discretion beyond the period of 90 days but since that extension is not held to be automatic, the Court would require cogent grounds for such extension particularly, when the statute desired satisfaction of the trial Court in allowing such request.
17. The order impugned if is perused merely mentions that on considering the averments made in the application seeking permission to file written statement, such a permission for filing the written statement is granted.
However, the Court granted cost as at a delayed stage such application has been filed.
In isolation if the order impugned dated 23.11.2007 allowing the written statement on record if is examined, it appears that there are no elaborate reasons given by the Court while allowing such application. It merely makes reference of contents of the application where the illness of some of the defendants and their staying outside the territorial jurisdiction of the Court are the grounds mentioned. Thus it can be made out that on account of illness of both the defendants one suffering on account of severe diabetes and the other being the heart patient, they showed their inability to file the reply in time.
Such application was given after nearly 3 years from 4.9.2004 when the Court on application moved for filing written statement ordered thus:-
“This matter is pending for hearing of Exh.5, there fore at the stage this application does not survive, hence rejected.”
18. This application dated dated 7.10.2004 as can be noted was rejected at that stage since hearing for application of injunction was yet pending and, therefore, it cannot be treated as formal closure of right. However, it was obligatory on the part of the defendant to file a written statement within 30 days and extension upto 90 days could have been granted beyond that period when such permission has been granted. It would not be right to contend on the part of the petitioners that once after having closed the right of the respondents, such permission has been granted. The illness of the respondents original defendants are the grounds weighed with the Court to permit the same.
19. It is required to be noted, at this stage, that earlier when this Court allowed the petition of original plaintiff present petitioners, the suit of the plaintiff was already dismissed. It is further required to be noted that after the issues were framed on 16.4.2007 nearly 14 adjournments were sought by plaintiffs and on 4.1.2008 when it did not proceed with the matter, the Court dismissed the suit for want of prosecution by rejecting the application to adjourn the matter. Therefore, it would not be possible for this Court to hold that any prejudice has been caused to the plaintiffs petitioners by such late filing of written statement as nothing has proceeded in the interregnum period.
20. Relevant would be also to make a mention that power of attorney averred to have been given in respect of the suit property by the present respondents was of the son of the plaintiff, Mr. Sanjay Chokshi and the compromise which is said to have been effected and not honoured was also with the plaintiff's own son as power of attorney holder and and it is the allegation on the part of the respondent that plaintiff and the power of attorney holder in collusion had entered into the compromise, disregarding the interest of the respondents. As these are very peculiar facts emerging on the record, serious prejudice is likely to be caused to the cause of the respondents if permission to bring on record, the correct facts by way of written statement is not allowed. And, therefore, the order impugned dated 23.11.2007 permitting the respondents to file written statement is not to be interfered with in the aforementioned facts and circumstances of the case. Special Civil Application No.1039 of 2008, therefore, required no acceptances on merit.
21. With regard to the challenge made by the respondents to the order of restoration of suit to file on 19.11.2009 in RCS No.53 of 2003 and, thereby setting aside the order of dismissal dated 4.1.2008 for the reasons to be followed hereinafter calls for no interference.
22. It is fervently argued by learned advocate Mr. Mehta that despite repeated adjournments the plaintiffs petitioners when chose not to proceed with the matter, the suit was rightly dismissed and, there was absolutely no ground in existences for the Court to restore the suit to the file of the Court for further proceedings under Order 9 Rule 4 of the Code of Civil Procedure.
23. It emerges from the order impugned that the Court has after bipartite hearing and on extensive recordance of the reasons has allowed such an application. There is hardly any jurisdictional error that could be pointed out in granting of request of restoration. It appears that day on which such order of dismissal was passed, a request was made by the petitioner to adjourn the matter on the ground of pendency of the revision application which was preferred since delayed filing of the written statement was allowed. The Court after grasping the entire issue when had found justification in the petitioner remaining absent on the said date, allowed such request of restoration, no error appears to have been committed in passing such an order. It is not desirable although for the plaintiffs petitioners not to proceed with the matter on mere pendency of appeal or revision before this Court when there was explicitly no order of stay of the proceedings before the trial Court. However, on giving sufficient grounds, the Court when permitted the restoration, in the opinion of this Court, supervisory jurisdiction is not to be invoked. However, additionally a specific condition requires to operate qua the parties and in particular the petitioners plaintiffs that they shall proceed with the matter without causing further delay in recordance of evidence and accordingly Special Civil Application No.3258 of 2010 merits no indulgence.
24. This takes this Court to the request made for indulgence in the order rejecting the application for amendment under Order 6 Rule 17 of the Code of Civil Procedure.
25. It is the case of the petitioner learned advocate Mr.
Bharda that original suit which is preferred for injunction is sought to be converted in a suit for specific performance of the contract for which the petitioner is ready to file Court Fees Stamps. It was the case of the petitioner that agreement to sell has been executed by, the respondents and the possession pursuant thereto has been already given and, therefore the respondents are not taken up by surprise if the Court allows such an application for amendment. He also lamented the fact that the reasons given in the order are not germane and, therefore, such an order requires interference.
26. According to the learned advocate Mr. Ajay Mehta, serious prejudice is likely to be caused to the defendants as the very nature of the case of the plaintiffs gets materially and totally altered. He further urged that the Court followed the settled legal position to deny the request of amendment as serious questions of limitation are also to arise and it is ill-design on the part of the petitioners who consciously had not filed a suit for specific performance and after such a long delay, for an agreement dated 6.10.1998 he has chosen to convert the suit in suit for specific performance of contract.
It would be apt to make a mention of provision of Order 6 Rule 17 of the Code of Civil Procedure at this stage. Some of the well laid down prepositions on this provision will require mention at this stage.
“17.Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”
If the amendment alters the very basic structure and changes the very nature of the suit, the same is not to be allowed as per the statute.
27. It is not in dispute that the registered agreement to sell is dated 6.10.1998 and the petitioner has based his suit on such an agreement. It is the case of the petitioner plaintiff that possession of the suit property said to have been handed over on 4.11.1998 on the strength of this it is also said that the respondent executed the power of attorney in favour of Sanjay Chokshi on 6.10.1998 and it is a grievance from the beginning that though entire amount of consideration had been given respondents did not execute sale deed in favour of the petitioners. Despite these averments the petitioners chose not to file the suit for specific performance knowing fully well that the question of limitation would arise as the agreement was of the year 1998. Again, there is a requirement to make mention that the application for injunction came to be decided by the Court on 31.8.2006 rejecting such application of petitioners, which is not being challenged. The Court felt that power of attorney holder was Sanjay Chokshi, who was never appointed as power of attorney of the respondent and the time stipulated for executing registered sale deed was 2 years from 1998. In all these circumstances, when the trial Court after detailed consideration, rejected the application Exh. 67 of amendment on the ground that such amendment and materially alters virtually the very nature of the suit and seriously causes prejudice, by giving cogent reasons, this hardly calls for any interference. In the result, this petition being Special Civil Application No. 1420 of 2012 also does not require any interference.
In view of the discussion held hereinabove all the three petitions being Special Civil Application No. 1039 of 2008 challenging filing of written statement, Special Civil Application No. 3258 of 2010 objecting to restoration of the suit and Special Civil Application No. 1420 of 2012 denying amendment in the pleading to the original plaintiff are dismissed. Parties to bear their respective costs.
( Ms. Sonia Gokani, J. ) sudhir