The Hon'ble Supreme Court of India in the ruling of Kailash v. Nanhku and
others, held that –
“The object and purpose behind enacting Order VIII Rule 1 of the Civil
Procedure Code in the present form and the context in which the provision 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 beyond time limits as referred to in the said
provision. However, the extension of time shall be only by way of exception and
for reasons to be recorded in writing. Furthermore, it is also concluded in para 45
departure their from would be by way of exception.”
6.
that ordinarily the time schedule contained in the provision is to be followed and
In M/s. R.N.Jadi and Brothers & Ors.v. Subhashchandra's case, the legal
position in this regard was clarified with following observations.
“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
provisions contained in Order VIII Rule 1 is procedural. It is not the part of the
substantive law. In other words, object is to expedite the hearing and not to
scuttle the same. The balance has to be maintained by the Court. While justice
delayed may amount to justice denied and justice hurried in some cases may
amount to justice buried.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.4400/2012
Ravindralal Biharilal Srivastava,
...VERSUS...
2) Shri V. R.Bahir,
CORAM : A. P. BHANGALE, J.
DATED : 27.06.2013
Rule. Rule made returnable forthwith. The petition is taken up for
final hearing with the consent of the learned counsel for the parties.
Considering that the interim order passed by the 2nd Joint Civil
2.
Judge, Senior Division on 04/08/2012 is questioned in the instant petition whereby
permission to take the written statement on record for to defend Special Civil Suit
No.1056/2010 was refused by the trial Court on the ground that the defendant No.1
(petitioner) was not diligent enough to fulfill his undertaking.
3.
Learned counsel on behalf of the petitioner (defendant No.1)
submitted that suit was for instituted for the recovery of damages claimed in the sum
of rupees five crore on account of alleged malicious arrest and illegal detention of the
plaintiff resulting in defamation of the plaintiff, who is a mechanical engineer and
served in Nagpur Engineering Company in the year 1998 and after resigning, he joined
another company by name Sricon Infrastructure Private Limited.
4.
I need not enter into details of facts pleaded, as the question is
raised regarding the procedure arising under Order VIII Rule 1 of Civil Procedure Code.
In a given case when time limit is fixed for filing written statement, normal rule is that
written statement has to be filed within time limit, allowed by the Court as compliance
of time limit can ensure smooth progress of the suit, early hearing thereof and justice
according to law. Learned counsel for the petitioner (defendant No.1) submitted that
in the interest of substantial justice, the defendant No.1 ought to have been permitted
to place his written statement on record, which according to the learned counsel for the
petitioner (defendant No.1), is already placed on record of the trial Court. In
support of these submissions, a reference is made to the ruling in M/s. R. N. Jadi and
Brothers & Ors. v. Subhashchandra, reported in AIR 2007 SC 2571. It was held in
view of a decision of the Apex Court in Kailash v. Nanhku and Ors. (2005 (4) SCC 480)
wherein it was observed that the provisions of Order VIII Rule 1 CPC are directory, the
5.
satisfactorily explained.
reasons justifying the delayed presentation of the written statement could be
On behalf of the respondent No.1 (plaintiff), reference is made to
the rulings in Kailash v. Nanhku and others, reported in AIR 2005 SC 2441 and M/s.
Aditya Hotels (P) Ltd. v. Bombay Swadeshi Stores Ltd.& Ors., reported in AIR 2007
SC 1574. The Hon'ble Supreme Court of India in the ruling of Kailash v. Nanhku and
others, held that –
“The object and purpose behind enacting Order VIII Rule 1 of the Civil
Procedure Code in the present form and the context in which the provision 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 beyond time limits as referred to in the said
provision. However, the extension of time shall be only by way of exception and
for reasons to be recorded in writing. Furthermore, it is also concluded in para 45
departure their from would be by way of exception.”
6.
that ordinarily the time schedule contained in the provision is to be followed and
In M/s. R.N.Jadi and Brothers & Ors.v. Subhashchandra's case, the legal
position in this regard was clarified with following observations.
“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
provisions contained in Order VIII Rule 1 is procedural. It is not the part of the
substantive law. In other words, object is to expedite the hearing and not to
scuttle the same. The balance has to be maintained by the Court. While justice
delayed may amount to justice denied and justice hurried in some cases may
amount to justice buried.”
7.
Thus, having considering the pros and cons of the legal position
stated and explained by the Hon'ble Supreme Court and particularly considering the
nature of the claim and the relief sought in the pending suit for recovery of damages
in the sum of rupees five crore on account of alleged malicious arrest, illegal detention
and defamation and even considering the submissions advanced on behalf of the
respondent No.1 that the petitioner (defendant No.1) in the pending suit had in fact
filed precipe with undertaking to file the written statement, the petitioner (defendant
No.1) ought to have filed the written statement on record within the time limit.
However, the defendant No.1 continued to cause delay in filing the written statement
and, therefore, the trial Court had passed the impugned order. Learned counsel for the
respondent No.1 criticised the conduct of the petitioner (defendant No.1) to protract
the proceedings before the trial Court by seeking adjournments to file written
statement and also causing breach of the undertaking given to the Court to file the
ig
written statement earlier.
8.
By this time, though by way of rule, the petitioner (defendant
No.1) may not have been allowed to file written statement in case breach of
undertaking and unnecessary adjournments, I think in the ,paramount interest of
substantial justice, considering the nature of suit claim and the fact that the petitioner
(defendant No.1) failed to file the written statement on record, one more opportunity
may be granted in favour of the petitioner (defendant No.1) to permit him to submit
the written statement on record by imposing reasonable cost in the sum of Rs.10,000/
upon him for availing this opportunity to submit the written statement on record.
9.
For the reasons aforesaid, the impugned order is quashed and set
aside. The petitioner (defendant No.1) is directed to submit the written statement on
record subject to payment of costs of Rs.10,000/ to the respondent No.1 (plaintiff) as
condition precedent for considering the written statement already placed on the record
of the trial Court. The petitioner (defendant No.1) shall, after his written statement is
taken on record for the purpose of framing the issues pursuant to this order, cooperate
for early hearing and disposal of the suit in the trial Court. The trial Court is requested
to expedite the hearing of the suit and to decide the same on merits and according
to law as early as possible.
Rule is made absolute in the aforesaid terms with no more order as
10.
costs in the sum of Rs 10,000/ is imposed upon the defendant.(Petitioner herein)
Learned counsel for the respondent No.1 (plaintiff) prayed for
11.
staying the operation of this order for a period of four weeks. I think, considering that
the suit is pending since long, period of four weeks would not be inordinately long
period as respondents are entitled to avail of further remedy as may be advised.
JUDGE
Operation of this order shall remain stayed for four weeks from the date of this order.
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