Om Prakash v. Shamsher

15. It is submitted that the learned Trial Court had no power to pass any order, thereby extending the time limit for filing written statement after the lapse of 1582 days from the date of the Order dated 21st April, 2018, whereunder, the leave to defend was allowed, as the time limit to file written statement cannot be extended beyond 90 days under Order VIII Rule 1 of the CPC.

16. It is submitted that the respondent had been attending the matter before the learned Trial Court until his leave to defense was allowed by the Trial Court vide Order dated 21st April, 2018. Thereafter, the respondent instead of filing the written statement, delayed the matter with malafide intention thereby hindering the process of Trial of the Court below.

17. It is submitted that the Trial Court without applying its judicial mind, wrongly allowed the leave to defend application of the respondent vide Order dated 21st April, 2018 but also wrongly directed the petitioner to prove his case regarding maintainability of the said suit. It is further submitted that the learned Trial Court while allowing the leave to defend of the respondent had failed to consider that there is lack of strong defense to contest the summary suit.

18. In view of the foregoing paragraphs, the learned counsel for the petitioner submitted that the instant petition may be allowed and the reliefs sought may be granted.

19. Per Contra, learned counsel appearing on behalf of the respondent vehemently opposed the averments made by the petitioner. The present petition is nothing but an abuse of the process of law.

20. It is submitted that the non-filing of the written statement by the respondent is neither intentional nor deliberate but because of the certain exigencies. The respondent could not file his written statement on time as the matter was repeatedly listed for arguments due to which he lost track of the matter.

21. It is submitted that the learned Trial Court has rightly applied its judicial mind while deciding the application of the respondent under Order VIII Rule 1 read with Section 148 and 151 of the CPC. The same has been done after considering the reasons stated by the respondent in not filing of the written statement.

22. It is submitted that the learned Trial Court has not caused any miscarriage of justice by passing the impugned Order. It is further submitted that the respondent will suffer grave injustice and irreparable harm, if he is not allowed to prove his case on merits.

23. It is submitted that the learned Trial Court has rightly passed the order by exercising its powers under section 151 of the CPC and hence, the order does not suffer from any irregularity or illegality.

24. It is submitted that this revision petition does not fall within the ambit of Section 115 of the CPC. It is further submitted that the impugned order passed by the learned Trial Court is not erroneous as the petitioner did not make any averment which has to be looked into as per this Court’s jurisdiction under Section 115 of the CPC.

25. Hence, in view of the foregoing submissions, the respondent seeks that this Court may dismiss this revision petition thereby, upholding the impugned Order.

26. Heard the learned counsel for the parties and perused the material on record.

27. The petitioner has preferred the present revision petition against the order dated 20th August, 2022 passed by the learned Trial Court whereby, the application of the respondent filed under Order VIII Rule 1 read with Section 148 and 151 of the CPC, was allowed. It was argued by the respondent before the learned Trial Court that he could not file his written statement on time as the matter was repeatedly listed for arguments due to which he lost track. In pursuance of such submission, the learned Trial Court by exercising its power by allowing the application filed under Order VIII Rule 1 read with Section 148 and Section 151 of the CPC, whereby, it is explicitly stated that the defense taken by the respondent is a plausible defense and injustice will be caused to him if his opportunity to lead the defense is denied. The learned Court below further directed the respondent to compensate the petitioner for the prejudice caused to him. The relevant paragraph of the impugned order is reproduced herein below for reference: “The application of the defendant seeking leave to defend was allowed as he has raised a plausible defense in his favour, if, the defendant is not allowed to place on record his WS, his opportunity to lead his defense will be closed and injustice will be caused to him whereas the prejudice caused to the plaintiff can be compensated by cost. In the interest of justice, the application of defendant is allowed subject to cost of Rs. 20,000/- to be paid to the counsel for the plaintiff with the direction to file WS within 7 days from today with advance copy to the other party.”

28. At this stage, the scope, nature and object of Order VIII Rule 1 of the CPC, is pertinent to be discussed. The relevant provision is reproduced herein below for reference: “[ORDER VIII – Written statement, set-off and counter-claim Rule 1 - Written Statement.—The Defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defense: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.] *[Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record.]”

29. The Hon’ble Supreme Court in Salem Advocate Bar Association, Tamil Nadu vs UOI (2005) 6 SCC 344, has discussed the scope of Order VIII Rule 1 of the CPC. The Hon’ble Court held that the time period prescribed for the filing of written statement is directory and not mandatory and hence, it can be extended beyond 90 days as per the discretion of Court. However, such discretionary powers should be exercised for the purpose of causing justice, only in extraordinary cases, and not in routine. The relevant paragraph of the judgement is reproduced herein below for reference:

30. The provision under Order VIII Rule 1 of the CPC does not put any embargo on the powers of the Court to extend time in filing written statement and has to be construed as directory and not mandatory. This view was reiterated by the Hon’ble Supreme Court in Kailash vs Nankhu and Ors. (2005) 4 SCC 480, wherein, the Hon’ble Court held that the time to file Written Statement may be extended by the Court beyond the period of 90 days but only in exceptional cases and not in a routine manner. The said exceptional cases have to be in cases where circumstance are are beyond the control of the defendant and grave injustice would be caused if the duration of filing written submission was not extended. The reasons for exercising such discretion are to be recorded in writing. The Court while exercising such discretionary power may impose compensatory costs on the defendant.

31. The Hon’ble Supreme Court has further reiterated the principle for condoning the delay in filing written submission under Order VIII of CPC in the judgment of Shantilal Gulabchand Mutha v. Tata Engg. & Locomotive Co. Ltd., (2013) 4 SCC 396 ―9. In view of the above, it appears to be a settled legal proposition that the relief under Order 8 Rule 10 CPC is discretionary, and court has to be more cautious while exercising such power where the defendant fails to file the written statement. Even in such circumstances, the court must be satisfied that there is no fact which needs to be proved in spite of deemed admission by the defendant, and the court must give reasons for passing such judgment, however, short it be, but by reading the judgment, a party must understand what were the facts and circumstances on the basis of which the court must proceed, and under what reasoning the suit has been decreed.”

32. The aforesaid principle has been reiterated further by Hon’ble Supreme Court in the judgment of C.N. Ramappa Gowda v. C.C. Chandregowda, (2012) 5 SCC 265

25. We find sufficient assistance from the apt observations of this Court extracted hereinabove which has held that the effect [Ed.: It would seem that it is the purpose of the procedure contemplated under Order 8 Rule 10 CPC upon non-filing of the written statement to expedite the trial and not penalise the defendant.] of non-filing of the written statement and proceeding to try the suit is clearly to expedite the disposal of the suit and is not penal in nature wherein the defendant has to be penalised for nonfiling of the written statement by trying the suit in a mechanical manner by passing a decree. We wish to reiterate that in a case where written statement has not been filed, the court should be a little more cautious in proceeding under Order 8 Rule 10 CPC and before passing a judgment, it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgment and decree could not possibly be passed without requiring him to prove the facts pleaded in the plaint.

26. It is only when the court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the plaintiff in view of the deemed admission by the defendant, the court can conveniently pass a judgment and decree against the defendant who has not filed the written statement. But, if the plaint itself indicates that there are disputed questions of fact involved in the case arising from the plaint itself giving rise to two versions, it would not be safe for the court to record an ex parte judgment without directing the plaintiff to prove the facts so as to settle the factual controversy. In that event, the ex parte judgment although may appear to have decided the suit expeditiously, it ultimately gives rise to several layers of appeal after appeal which ultimately compounds the delay in finally disposing of the suit giving rise to multiplicity of proceedings which hardly promotes the cause of speedy trial.

27. However, if the court is clearly of the view that the plaintiff's case even without any evidence is prima facie unimpeachable and the defendant's approach is clearly a dilatory tactic to delay the passing of a decree, it would be justified in appropriate cases to pass even an uncontested decree. What would be the nature of such a case ultimately will have to be left to the wisdom and just exercise of discretion by the trial court who is seized of the trial of the suit.

33. In light of the above-mentioned judgements that the word “Shall” mentioned in Order VIII Rule 1 of the CPC by itself, is not conclusive to determine whether the provision is mandatory or directory. Therefore, in a case where the time period to file written statement as provided in Order VIII Rule 1 of the CPC expired, the Courts can extend such time period beyond 90 days, only in exceptional cases, but the same must be done to protect the interests of the party and for the purpose of imparting justice.

34. In regards to Section 151 of the CPC it is a well settled law that Section 151 of the CPC has an extensive scope and covers numerous instances where the specific provisions of the CPC may not provide enough relief to a party. Therefore, it is clear that the Courts must exercise their jurisdiction and powers under Section 151 of the CPC only when an exceptional case comes before the Court and the circumstances warrant that inherent power be exercised to impart justice between the parties. Furthermore, to ensure that the interests of justice are served, the Courts must use their inherent powers under this section cautiously and with prudence and also to prevent any abuse of the legal process.

35. During the course of the arguments, it was averred by the petitioner that this Court is incumbent with the wide revisional power under section 115 of the CPC to decide the present petition. It was prayed that the present petition be allowed as the learned Trial Court did not have the jurisdiction to pass the impugned Order.

36. At this juncture it is prudent to understand and analyse the powers of the Civil Court under Section 115 of the CPC. The said provision is reproduced herein below for reference:

37. The Hon’ble Supreme Court in D.L.F. Housing & Construction Co. (P) Ltd. v. Sarup Singh, (1969) 3 SCC 807 has discussed the scope of the High Court under section 115 of the CPC, wherein it was held that:

38. The above said position was recently reaffirmed in the judgment of Frost (International) Ltd. v. Milan Developers & Builders (P) Ltd., (2022) 8 SCC 633, by the Hon’ble Supreme Court, wherein, it was observed that the Court exercising revisional powers shall not enter into the questions of facts or evidence or any errors, thereto, but shall limit itself to the question of errors in exercise of jurisdiction.

39. The power of revision under Section 115 of the CPC has a very limited scope, while adjudicating a revision petition does not have to go into the merits of the case and just have to look at the question of jurisdiction. Therefore, the Court exercising revisional powers shall not enter into the questions of facts or evidences or any errors, thereto, but shall limit itself to the question of errors in exercise of jurisdiction. Also, not every order of the learned Trial Court can be regarded as an order that can be put under the ambit of revisional jurisdiction of the High Court.

40. The case of the petitioner is that the time period to file written statement had already expired and defense of the respondent was struck off by the learned Trial Court vide order dated 25th August, 2018. Thereafter, the respondent filed an application under Order VIII Rule 1 of the CPC to set aside the said order and Trial Court allowed an extension of 7 days to the respondent to file his written statement.

41. In view of foregoing discussion, this Court is of view that the timelimit under Order VIII Rule 1 of the CPC is directory in nature, can be further extended by the Courts to impart the ends of justice. The learned Trial Court has rightly adopted the law laid down by the Hon’ble Supreme Court in the above-mentioned judgements concerning the extension of time limit prescribed under Order VIII Rule 1 of the CPC, which is to be construed as directory and not mandatory.

42. Therefore, I do not find any error or irregularity in the impugned order dated 20th August, 2022, passed by the trial court. The learned Trial Court has the power to pass such an order for the reasons that the respondent should not be left defenseless and therefore, the order does not suffer from any illegality and infirmity.

43. As per the discussion in foregoing paragraphs the Trial Court has passed the impugned order dated 20th August 2022 passed by the Learned A.D.J.-03, North District, Rohini District Courts Delhi in civil suit bearing no.

CS DJ 59124 of 2016 titled as Om Prakash v. Shamsher, within its jurisdiction for achieving its jurisdiction for achieving ends of justice. The learned Court below has neither acted illegally in the exercise of its jurisdiction nor has there been any material irregularity. Therefore, the present petition is liable to be dismissed.

44. Accordingly, the instant petition along with pending application stands dismissed.

45. The order be uploaded on the website forthwith.