Rule 1 of Order 8 - written statement shall not be later than ninety days - Supreme Court had set a clear guideline to the subordinate Courts to discourage accepting of the written statements beyond the stipulated time.= the Supreme Court had cautiously taken notice of the judgment cited by the learned counsel for the petitioner in Nanhkus case, and observed that the said case is no authority for receiving the written statement after the expiry of the period permitted by law, in a routine manner. In the above-extracted paragraph, the Supreme Court had set a clear guideline to the subordinate Courts to discourage accepting of the written statements beyond the stipulated time. In those circumstances, there being no weighty reasons for non-filing of the written statement within the stipulated time, the order of the Court below rejecting to receive the same, at a belated stage, cannot be found fault with. The Civil Revision Petition does not, therefore, merit any consideration and the same is accordingly, dismissed. No costs.
HONBLE SRI JUSTICE CHALLA KODANDA RAM
Civil Revision Petition No. 6510 of 2017
08-12-2017
Jareena Sultana Petitioner
Chail Sings & others Respondents
Counsel for the petitioner:Sri K. Narsi Reddy
Counsel for the respondents:Sri A. Chandra Sekhar
<GIST:
>HEAD NOTE:
? Cases cited:
1.AIR 2005 SC 2441
2.(2007) 6 SCC 420
THE HONBLE SRI JUSTICE CHALLA KODANDA RAM
CIVIL REVISION PETITION No. 6510 OF 2017
O R D E R :
Order dated 27.10.2017 dismissing I.A. No. 791 of 2017 filed
by the petitioner / defendant No.1 in O.S. No. 2 of 2013, invoking
Section 151 of the Code of Civil Procedure, for receiving the written
statement, is challenged before this Court.
Sri K. Narsi Reddy, learned counsel appearing for the
petitioner, placing reliance on the judgment of the Supreme Court
in Kailash v. Nanhku , would submit that the provisions of Order
VIII Rule 1 of the Code of Civil Procedure fixing the time schedule
for filing the written statement are not mandatory and that there is
a discretion vested in the Court to allow the written statement to
be filed subject to putting the erring defendant on terms. He
would further urge that inasmuch as the petitioner has been
denied execution of the agreement of sale itself, on which basis,
the plaintiffs/respondents have filed the suit for specific
performance, and inasmuch as substantial property rights are
involved, if an opportunity is not given to the petitioner, he would
suffer irreparable loss. Hence, this Court may be pleased to
exercise the discretion vested in it and allow the petitioner to file
the written statement, subject to stiff conditions, prays the learned
counsel.
On the other hand, Sri A. Chandra Sekhar, learned counsel
appearing on behalf of respondent No.1 / plaintiff would submit
that the petitioner had deliberately stayed away from the
proceedings, despite receipt of summons in the suit, and was in
fact, set ex parte on 04.04.2013. However, the Court below, taking
a lenient view, had allowed I.A. No. 1168 of 2016 on 03.08.2016,
giving the petitioner an opportunity to participate in the suit
proceedings. Even thereafter, the petitioner did not choose to file a
written statement and it is only after completion of the plaintiffs
side evidence, the present Application has been taken out. He
would further urge that Section 151 of the Code has no application
in the instant case, for, the provisions of Order VIII Rule 1
mandate the written statement to be filed within 30 days from the
date of receipt of summons and thereafter, within 60 more days,
for the reasons to be explained, and that the Court may exercise its
discretion / jurisdiction, by recording cogent reasons, justifying
the same. According to the petitioner, in the present case on hand,
the reason stated by the petitioner is scanty and not worth-
mentioning. He would therefore, remind that the Supreme Court
had repeatedly cautioned that undue indulgence shall not be
shown to a litigant, who has not been vigilant.
On a careful consideration of the respective submissions, it
is clear that the written statement ought to have been filed by the
petitioner, at any rate by May, 2013, as the suit came to be filed on
03.01.2013. However, on 04.04.2013, the petitioner was set
ex parte. She, therefore, filed I.A. No. 1168 of 2016 to set aside the
ex parte order and the said Application came to be allowed on
03.08.2016. It is thereafter, I.A.No. 791 of 2017 was filed seeking
the permission of the Court to file the written statement.
At this stage, it will be useful to note the reasons stated in
the affidavit filed in support of the said I.A:
But due to inadvertent mistake written statement on
my behalf could not be filed. The non-filing of the written statement
is neither intentional nor wilful but for reasons beyond my
control.
The above-quoted reason hardly satisfies the rigour, which
has been imposed by the Supreme Court, so as to fall within the
exceptional circumstances / reasons/ inability on the part of the
defendant. Admittedly, there is a delay of more than four years in
seeking to file the written statement, which would go to show that
there was no diligence on the part of the defendant/petitioner in
protecting her so-called interests.
In this context, it is apt to observe the judgment of the
Supreme Court in R.N. Jadi & brothers v. Subhaschandra ,
wherein, it has been held thus:
It is also to be noted that though the power of the Court
under the proviso appended to Rule 1 of Order 8 is circumscribed by
the words shall not be later than ninety days but the consequences
flowing from non-extension of time are not specifically provided for
though they may be read by necessary implication. Merely because
a provision of law is couched in a negative language implying
mandatory character, the same is not without exceptions. The
Courts, when called upon to interpret the nature of the provision,
may, keeping in view the entire context in which the provision came
to be enacted, hold the same to be directory though worded in the
negative form.
While dealing with the above-said case, the Supreme Court
had cautiously taken notice of the judgment cited by the learned
counsel for the petitioner in Nanhkus case, and observed that the
said case is no authority for receiving the written statement after
the expiry of the period permitted by law, in a routine manner. In
the above-extracted paragraph, the Supreme Court had set a clear
guideline to the subordinate Courts to discourage accepting of the
written statements beyond the stipulated time. In those
circumstances, there being no weighty reasons for non-filing of the
written statement within the stipulated time, the order of the Court
below rejecting to receive the same, at a belated stage, cannot be
found fault with. The Civil Revision Petition does not, therefore,
merit any consideration and the same is accordingly, dismissed.
No costs.
However, dismissal of the C.R.P. shall not be construed as
depriving the petitioner of an opportunity to participate in further
proceedings from the stage at which the Application filed by him to
set aside the ex parte order was allowed.
___________________________
CHALLA KODANDA RAM, J
08th December 2017
Civil Revision Petition No. 6510 of 2017
08-12-2017
Jareena Sultana Petitioner
Chail Sings & others Respondents
Counsel for the petitioner:Sri K. Narsi Reddy
Counsel for the respondents:Sri A. Chandra Sekhar
<GIST:
>HEAD NOTE:
? Cases cited:
1.AIR 2005 SC 2441
2.(2007) 6 SCC 420
THE HONBLE SRI JUSTICE CHALLA KODANDA RAM
CIVIL REVISION PETITION No. 6510 OF 2017
O R D E R :
Order dated 27.10.2017 dismissing I.A. No. 791 of 2017 filed
by the petitioner / defendant No.1 in O.S. No. 2 of 2013, invoking
Section 151 of the Code of Civil Procedure, for receiving the written
statement, is challenged before this Court.
Sri K. Narsi Reddy, learned counsel appearing for the
petitioner, placing reliance on the judgment of the Supreme Court
in Kailash v. Nanhku , would submit that the provisions of Order
VIII Rule 1 of the Code of Civil Procedure fixing the time schedule
for filing the written statement are not mandatory and that there is
a discretion vested in the Court to allow the written statement to
be filed subject to putting the erring defendant on terms. He
would further urge that inasmuch as the petitioner has been
denied execution of the agreement of sale itself, on which basis,
the plaintiffs/respondents have filed the suit for specific
performance, and inasmuch as substantial property rights are
involved, if an opportunity is not given to the petitioner, he would
suffer irreparable loss. Hence, this Court may be pleased to
exercise the discretion vested in it and allow the petitioner to file
the written statement, subject to stiff conditions, prays the learned
counsel.
On the other hand, Sri A. Chandra Sekhar, learned counsel
appearing on behalf of respondent No.1 / plaintiff would submit
that the petitioner had deliberately stayed away from the
proceedings, despite receipt of summons in the suit, and was in
fact, set ex parte on 04.04.2013. However, the Court below, taking
a lenient view, had allowed I.A. No. 1168 of 2016 on 03.08.2016,
giving the petitioner an opportunity to participate in the suit
proceedings. Even thereafter, the petitioner did not choose to file a
written statement and it is only after completion of the plaintiffs
side evidence, the present Application has been taken out. He
would further urge that Section 151 of the Code has no application
in the instant case, for, the provisions of Order VIII Rule 1
mandate the written statement to be filed within 30 days from the
date of receipt of summons and thereafter, within 60 more days,
for the reasons to be explained, and that the Court may exercise its
discretion / jurisdiction, by recording cogent reasons, justifying
the same. According to the petitioner, in the present case on hand,
the reason stated by the petitioner is scanty and not worth-
mentioning. He would therefore, remind that the Supreme Court
had repeatedly cautioned that undue indulgence shall not be
shown to a litigant, who has not been vigilant.
On a careful consideration of the respective submissions, it
is clear that the written statement ought to have been filed by the
petitioner, at any rate by May, 2013, as the suit came to be filed on
03.01.2013. However, on 04.04.2013, the petitioner was set
ex parte. She, therefore, filed I.A. No. 1168 of 2016 to set aside the
ex parte order and the said Application came to be allowed on
03.08.2016. It is thereafter, I.A.No. 791 of 2017 was filed seeking
the permission of the Court to file the written statement.
At this stage, it will be useful to note the reasons stated in
the affidavit filed in support of the said I.A:
But due to inadvertent mistake written statement on
my behalf could not be filed. The non-filing of the written statement
is neither intentional nor wilful but for reasons beyond my
control.
The above-quoted reason hardly satisfies the rigour, which
has been imposed by the Supreme Court, so as to fall within the
exceptional circumstances / reasons/ inability on the part of the
defendant. Admittedly, there is a delay of more than four years in
seeking to file the written statement, which would go to show that
there was no diligence on the part of the defendant/petitioner in
protecting her so-called interests.
In this context, it is apt to observe the judgment of the
Supreme Court in R.N. Jadi & brothers v. Subhaschandra ,
wherein, it has been held thus:
It is also to be noted that though the power of the Court
under the proviso appended to Rule 1 of Order 8 is circumscribed by
the words shall not be later than ninety days but the consequences
flowing from non-extension of time are not specifically provided for
though they may be read by necessary implication. Merely because
a provision of law is couched in a negative language implying
mandatory character, the same is not without exceptions. The
Courts, when called upon to interpret the nature of the provision,
may, keeping in view the entire context in which the provision came
to be enacted, hold the same to be directory though worded in the
negative form.
While dealing with the above-said case, the Supreme Court
had cautiously taken notice of the judgment cited by the learned
counsel for the petitioner in Nanhkus case, and observed that the
said case is no authority for receiving the written statement after
the expiry of the period permitted by law, in a routine manner. In
the above-extracted paragraph, the Supreme Court had set a clear
guideline to the subordinate Courts to discourage accepting of the
written statements beyond the stipulated time. In those
circumstances, there being no weighty reasons for non-filing of the
written statement within the stipulated time, the order of the Court
below rejecting to receive the same, at a belated stage, cannot be
found fault with. The Civil Revision Petition does not, therefore,
merit any consideration and the same is accordingly, dismissed.
No costs.
However, dismissal of the C.R.P. shall not be construed as
depriving the petitioner of an opportunity to participate in further
proceedings from the stage at which the Application filed by him to
set aside the ex parte order was allowed.
___________________________
CHALLA KODANDA RAM, J
08th December 2017
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