The instant petition is directed against the order dated 7 May 2019 passed by Revisional Court in Civil Revision No.177 of 2018 whereby the revisional court has allowed the revision and has set aside the order dated 12 November 2018 passed by the trial court. The trial court, by the said order, had allowed the application Paper No.94-C and condoned delay in filing of the written statement by the petitioner (defendant No.2).
In short, the facts giving rise to the instant petition are as follows: -
The plaintiff-respondent instituted Original Suit No. 261 of 2016 against the petitioner and respondent No.2 for specific performance of an agreement for sale dated 18/19 February 1988 and for permanent injunction restraining the defendant-petitioner from executing any sale deed in respect of the suit property. The petitioner entered appearance in the suit on 29 April 2016. She filed an application on 6 May 2016 under Order 7 Rule, 11 CPC praying for rejection of the plaint on the ground that the suit is barred by the law of limitation.
The petitioner did not file any written statement. She kept on pursuing her application under Order 7, Rule 11 CPC. Ultimately, it was not pressed, resulting in its dismissal on 28 August 2018. She thereafter filed an application 94-C with prayer to take on record the written statement filed along with it after condoning the delay in filing the same. The application was opposed by the plaintiff-respondent on the ground that the petitioner deliberately did not file the written statement for more than twenty eight months since she entered appearance with oblique motive of delaying the proceedings. She was aware that the plaint could not be rejected on the plea of limitation but still she chose not to file the written statement.
The trial court as noted above, allowed the application relying mainly on the decision of the Supreme Court in Salem Bar Association vs Union of India, (2005) 6 SCC 635. The trial court held that a very strict and technical view is to be eschewed otherwise it will result in serious prejudice to the petitioner. The trial court accepted the explanation offered by the petitioner in not filing written statement within prescribed time. The trial court also held that the plaintiff-respondent could be compensated by cost and accordingly allowed the application subject to payment of a cost of Rs.2000/- to the plaintiff-respondent. The plaintiff-respondent being aggrieved thereby filed a revision, which has been allowed by the impugned order.
Learned counsel for the petitioner submitted that the impugned order is manifestly illegal. The trial court had rightly allowed the application 94C. According to him, once an application under Order 7 Rule 11 CPC is filed, it is bounden duty of the trial court to decide the same before commencing the trial. Consequently, till the time application remained pending, the defendant was not obliged to file the written statement nor there was any question of delay. In support of the said submission, learned counsel for the petitioner has placed great emphasis on the judgement of the Supreme Court in R K Roja versus US Rayudu and another, 2016 (14) SCC 275. It is also urged that as soon as the petitioner realized that it would be better to press the point relating to limitation after issues are framed, she immediately got the application dismissed as not pressed and also filed her written statement. In the circumstances, the trial court was fully justified in condoning the delay in filing of the written statement. The revisional court has taken a very technical view in directing the written statement to be taken off the record. Reliance has also been placed on the judgments of the Supreme Court in Kailash Vs. Nanhku and others, AIR 2005 SC 2441 and Zolba Vs. Keshao and others, AIR 2008 SC 2099.
Per contra, learned counsel for the plaintiff-respondent urged that the revisional court has rightly allowed the revision in as much as the petitioner failed to disclose any exceptional reason for not being able to file written statement in time. He placed reliance on the judgement of the Supreme Court in SCG Contracts India Pvt. Ltd. Vs. K.S. Chamankar Infrastructure Pvt. Ltd. and others, AIR 2019 SC 2691 and judgement of this Court in Bonton Plastics Pvt. Ltd. Delhi Vs. Ramesh Chawla and another, 2016 (6) ALJ 490 .
I have considered the submissions advanced by learned counsel for the parties.
The legal position that provision of Order 8 Rule 1 CPC being in the realm of procedure is not mandatory but directory, is now well settled by a catena of judgments of the Supreme Court. The delay in filing of the written statement could not be condoned as a matter of course but by way of exception, for reasons which are of exceptional nature occasioned by factors beyond the control of the defendant, to be recorded in writing. In this regard, a brief reference to certain decisions would be of help. In Kailash versus Nanhku, the Supreme Court, after considering the legislative intent in amending Order 8 Rule 1 CPC prescribing initial period of 30 days for filing written statement, extendable by a further period of 90 days, held as follows:-
"40. Considering the object and purpose behind enacting Rule 1 of Order VIII 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 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.
41. 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.
42. 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.
43. 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."
Again in Salem Bar Association, the apex court reiterated the legal position that the provision of Order 8 Rule 1 CPC is directory not mandatory and the court in appropriate cases can extend time for filing written statement even beyond the prescribed period of 90 days. Once again, it was held that the provision being procedural in nature has to be interpreted in a manner so as to advance the cause of justice and not to defeat it. A construction of the rule of procedure which promotes justice and prevents miscarriage of justice has to be preferred. The observations made in paragraph 21 are worth reproducing:-
"21. ...There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The court has wide power to "make such order in relation to the suit as it thinks fit". Clearly, therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. 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-limit of 90 days. The discretion of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8 Rule 1."
In Atcom Technologies Limited Vs. Y.A. Chunawala and Company and others, (2018) 6 SCC 639, the Supreme Court held that the onus is upon the defendant to plead and satisfactorily demonstrate a valid reason for not filing written statement within prescribed time-
"21. In such a situation, onus upon the defendant is of a higher degree to plead and satisfactorily demonstrate a valid reason for not filing the written statement within thirty days. When that is a requirement, could it be a ground to condone delay of more than 5 years even when it is calculated from the year 2009, only because of the reason that Writ of Summons were not served till 2009?"
It is thus well settled that:- (a) Order 8 Rule 1 CPC is a provision which deals with the procedural law and not substantive rights of the parties; (b) the provision though couched in a negative language is not mandatory but directory; (c) the court has enough power to condone delay in filing written statement even beyond the stipulated period; (d) however, it could be for exceptional reasons beyond the control of the party and only when the court is of the opinion that by condoning delay, it would advance the cause of justice; and (e) in such a case, the plaintiff should be adequately compensated by cost.
It was urged by learned counsel for the petitioner with great emphasis that since the application under Order 7 Rule 11 remained pending, consequently, the stipulation regarding time prescribed under Order 8 Rule 1 CPC would not get attracted. The said submission was made relying on the judgement of the Supreme Court in R K Roja. For understanding the ratio of the said judgement, I would like to allude to the facts of that case. The appellant had approached the Supreme Court with two grievances; (i) the High Court did not dispose of the application filed by her under Order 7 Rule 11 CPC for rejection of the election petition but had posted the same alongwith main petition; and (ii) she was denied opportunity to file written statement. In the election petition, the appellant filed a counter affidavit and prayed for rejection of the election petition in exercise of power under Order 7 Rule 11 CPC. The court did not consider the request on the ground that no formal application was filed in that regard and hence, proceeded with the trial. At that stage, the appellant filed a formal application under Order 7 Rule 11 CPC. The court posted the said application for disposal alongwith the main petition. Aggrieved thereby, the matter was taken up in appeal before the Supreme Court. The Supreme Court accepted the contention of the appellant that an application under Order 7 Rule 11 CPC could be filed at any stage. The Supreme Court also held that once an application is filed under Order 7 Rule 11 CPC, the court is bound to dispose of the same before proceeding with the trial. Consequently, the course taken by the High Court in declining to consider the application under Order 7 Rule 11 CPC before proceeding further in the matter was held to be unsustainable in law. While taking the above view, the Supreme Court added a caveat to it:-
"However, we may hasten to add that the liberty to file an application for rejection under Order VII Rule 11 CPC cannot be made as a ruse for retrieving the lost opportunity to file the written statement. "
In SCG Contracts India Private Limited, the Supreme Court duly considered R K Roja and held that: -
"14. Learned counsel appearing for the respondents also relied upon R.K. Roja vs. U.S. Rayudu and another (supra) for the proposition that the defendant is entitled to file an application for rejection of plaint under Order VII Rule 11 before filing his written statement. We are of the view that this judgment cannot be read in the manner sought for by the learned counsel appearing on behalf of the respondents. Order VII Rule 11 proceedings are independent of the filing of a written statement once a suit has been filed. In fact, para 6 of that judgment records "However, we may hasten to add that the liberty to file an application for rejection under Order 7 Rule 11 CPC cannot be made as a ruse for retrieving the lost opportunity to file the written statement".
Although the Supreme Court was considering the amendments made in the CPC in reference to its applicability to the Commercial Courts, Commercial Division and Appellate Division of High Courts Act, 2015 and whereunder there was a specific bar for taking on record written statement filed beyond 120 days from the date of service of summons but exposition of law and the interpretation given to the previous judgment in R K Roja would be fully applicable to the proceedings of any ordinary civil suit. The time limit prescribed for filing of written statement under the proviso to Order 8 Rule 1 CPC would in no manner get extended or compromised for the reason that the defendant had filed application under Order 7 Rule is 11 CPC and it remained pending beyond the period of 120 days from the date of service of summons upon the defendant. If the defendant chooses to take risk of not filing the written statement while his application under Order 7 Rule 11 CPC is pending, he should be ready to face the consequences if the application is ultimately rejected. As rightly observed by the Supreme Court in SCG Contracts, the obligation of filing written statement as per the provision of Order 8 Rule 1 CPC is quite independent of the proceedings under Order 7 Rule 11 CPC. It cannot be made a ruse for retrieving the lost opportunity to file the written statement, as observed by the Supreme Court in R.K. Roja. Any other interpretation would be contrary to the legislative intent and would provide a safe path to a chronic procrastinator to defeat the provisions of law by filing frivolous application under Order 7 Rule 11 CPC and thereafter delaying its disposal.
In Bonton Plastics Pvt. Ltd. Delhi, a learned Single Judge of this Court had the occasion to consider exactly the same argument. The Court repelled the same observing that filing of application under Order 7 Rule 11 CPC would in no manner be an impediment in the way of the defendant in filing written statement within stipulated period. It has been observed as follows:-
"23. The defendant-revisionist had filed application under Order 7 Rule 11 C.P.C. on 24.7.2015 and the same was rejected on 18.1.2016. The explanation that the defendant-revisionist could not file the written statement on account of pendency of the above application is completely irrelevant and not material. The period of 30 days for filing written statement as well as the extended period of 90 days had expired much before the application under Order 7 Rule 11 was filed. There is no explanation or material on record to justify the non-filing of the written statement by the defendant-revisionist within the above period. Therefore, the defendant-revisionist even if entitle to exclusion of time spent in pursuing the application under Order 7 Rule 11 C.P.C. has miserably failed to submit any explanation or justification for not filing the written statement within 90 days of its appearance which had expired before the filing of application under Order 7 Rule 11 C.P.C.
24. Moreover, the filing of the aforesaid application under Order 7 Rule 11 C.P.C. in no way had stopped the defendant-revisionist from filing the written statement. The said application was rejected on 18.1.2016 but the written statement was presented in the Court on 4.3.2016 and in the meantime the defendant-revisionist had moved two applications seeking time to move to the High Court and for filing written statement. The manner and conduct in which the defendant-revisionist handled the suit and took time for filing of written statement speaks for itself that the intention was to prolong the matter rather to contest it on merit and get it concluded. These facts do not justify to make out an exceptional and rare case fit for extending time for filing written statement beyond the period of 90 days."
Now, reverting to the facts of the instant case, it is noteworthy that generally an issue as to whether suit is barred by limitation, is a mixed question of law and fact. The plaint could be rejected as barred by limitation only if a plain reading thereof would show that the suit was instituted beyond the prescribed time. It is also well settled that in a suit for specific performance of an agreement for sale of immovable property, time is generally not the essence of contract. Although, the defendant-petitioner had prayed for rejection of the plaint on the ground of limitation in exercise of power under Order 7 Rule 11 CPC, but it seems that she was well aware or at least well advised that it would not be possible to get the plaint rejected by invoking the power of the court under Order 7 Rule 11 CPC. The determination of the said question would require evidence. This is clear from the application filed by the petitioner dated 6.5.2016 wherein she stated that during pendency of application under Order 7 Rule CPC, she realized that it would be better to get the said application dismissed as not pressed and instead pray for decision on the issue of limitation after filing the written statement. It is not a case where the petitioner could be said to be harbouring under any misconception of law on account of which she was prevented from filing the written statement. The petitioner filed the application under Order 7 Rule 11 CPC on 6.5.2016 and got it rejected as not pressed on 28.8.2018 i.e. after more than two years and during this period, she did not file her written statement. The petitioner herself is to be blamed for having adopted the course which she knew would ultimately result in failure and consequently, she has to face the consequences flowing out of it. The revisional court has rightly observed that the petitioner has failed to disclose any good reason, much less any exceptional reason for not filing the written statement within prescribed time. The petitioner by filing application under Order 7 Rule 11 CPC, which she knew would not bear any fruit, had succeeded in delaying the trial for more than two years. It is to curb such kind of practices that the Legislature had provided a time limit by amending Order 8 Rule 1 CPC by Act No.22 of 2002. The power to extend the time limit could not be exercised in a casual manner, for mere askance, so as to nullify the period stipulated by Order 8 Rule 1 CPC.
In Atcom Technologies Ltd. (supra), where the High Court condoned the delay in filing written statement, although there was no valid ground, was not approved by the Supreme Court, observing thus:-
"22. We fail to persuade ourselves with this kind of reasoning given by the High Court in condoning the delay, thereby disregarding the provisions of Order 8 Rule 1 of the Code of Civil Procedure, 1908 and the spirit behind it. This reason of the High Court that delay was condoned ''by balancing the rights and equities' is far-fetched and, in the process, abnormal delay in filing the written statement is condoned without addressing the relevant factor, viz. whether the respondents had furnished proper and satisfactory explanation for such a delay. The approach of the High Court is clearly erroneous in law and cannot be countenanced. No doubt, the provisions of Order 8 Rule 1 of the Code of Civil Procedure, 1908 are procedural in nature and, therefore, hand maid of justice. However, that would not mean that the defendant has right to take as much time as he wants in filing the written statement, without giving convincing and cogent reasons for delay and the High Court has to condone it mechanically."
In Zolba (supra), there was a delay of thirty five days in filing written statement in a suit for partition. The explanation furnished by the defendant for not being able to file written statement within prescribed time was that he was advised by his counsel that the written statement could be filed after the decision of an appeal pending at that stage before the District court challenging the grant of temporary injunction in favour of the plaintiff. It was also the specific case of the defendant therein that the office record was handed over to the counsel through whom appeal was filed in the District court at Chandrapur, whereas the suit was pending before Civil Judge (Junior Division) Nagbhid. It is in the aforesaid backdrop that the Supreme Court interfered with the order refusing to condone delay in filing the written statement holding that:-
"8. ....In the application, it has been stated that on instruction of his counsel in the trial court, the written statement was not filed within the period of limitation as the appellant was under bonafide belief that the written statement shall be filed after the decision of the appeal by the District Court. The written statement was, however, filed and the records of the case were called from his lawyer who has been conducting his case in the appeal pending before the District Court. The facts disclose that the misc. appeal has been filed against an order of injunction before the District Court Chandrapur whereas the suit is pending before the Civil Judge, Junior Division, Nagbhid. Since the appeal was pending, the records of the appellant were then lying with the lawyer at Chandrapur. Therefore, the file was not available with the lawyer of the appellant at Nagbhid and therefore, the written statement could not be filed within the period of limitation. Such being the position, in our view, the facts stated would constitute sufficient cause for condoning the delay in filing the written statement and it has to be taken that the non-availability of records at Nagbhid had prevented the appellant from filing the written statement within the period of limitation which in our view was an exceptional case constituting sufficient cause for condoning the delay in filing the written statement."
On the other hand, in the instant case, the petitioner did not file the written statement knowing well the fate of the application under Order 7 Rule 11 CPC as well as the consequences flowing out of non filing of the written statement within time stipulated by Order 8 Rule 1 CPC. This Court fully concurs with the view taken by the revisional court that there did not exist any exceptional reason beyond the control of the petitioner which prevented her from filing the written statement within time and the trial court acted with material irregularity in exercise of its jurisdiction in condoning the delay.
In consequence and as a result of the discussion made above, the petition lacks merit and is dismissed.
No comments:
Post a Comment