Sec.151 , 148 and Or.VIII rule 1 of C.P.C - FORFEITED THE RIGHT TO FILE WRITTEN STATEMENT – CAN BE SET ASIDE
the law is well settled that the inherent
power under Section 151 of C.P.C. cannot be exercised for extending the time
for filing the written statement in view of Section 148 of C.P.C. which
specifically provides for enlargement of time. If the defendant fails to file
the written statement within the time permitted or fixed by the Court, it is
not obligatory on the part of the Court to pronounce the judgment, but in
exercise of power under Order 8 Rules 1, 1A & 10 of C.P.C. read with
Section 148 of C.P.C. it is always open to the Court in appropriate cases to
extend time to file the written statement. However, it is necessary for the
Court to assign the reasons while granting such extension. It is true that such
extension cannot be granted as a matter of course, but that can be done only in
exceptional circumstances where the defendant offers acceptable explanation for
its failure to file the written statement within the stipulated period.
In the case on hand, having considered
the material on record, the Court below by a well-reasoned order having
expressed its satisfaction as to the explanation offered by the 1st defendant
allowed the application in question. The said discretion exercised by the Court
below cannot be said to be vitiated on account of any extraneous considerations
nor can it be termed as perverse. On a perusal of the affidavit filed in
support of I.A.No.287 of 2004, it cannot be held that the explanation offered
by the 1st defendant was not credible. Since the first defendant is a Bank,
keeping in view the public interest involved the Court cannot totally ignore
the realities in the administrative delays and therefore a liberal approach is
necessary in considering the explanation offered. Hence, the Court below has
rightly allowed the petition on payment of costs.
2005 ( Aug. Part) judis.nic.in/judis_andhra/filename=2995
THE HON'BLE MS. JUSTICE G.ROHINI
Civil Revision Petition No.6218 OF 2004
05/08/2005
D.Sambasiva Rao Chowdary,
S/o. Late D. Balkotaiah, Hindu,
Aged 52 years, Occ. Agriculture,
R/o. Gunfoundry, Bodhan.
The State Bank of Hyderabad, Branch
at Gunfoundry through its Assistant
General Manager
2. The Debts Recovery Tribunal, rep.
through its Recovery Officer,
Palace Heights, Abids, Hyderabad.
3. The Hyderabad Chemical & Fertilizers Ltd.,
a company incorporated under Companies Act,
having its registered office at 10-2-3,
Intekhab Manzil, A.C. Guards, Hyderabad.
4. S.R. Patrick, Liquidator,
Hyderabad Chemical and Fertilizers,
Vijayanagar Colony, R-1, Hyderabad.
Counsel for the petitioner : Mr. Balraj Bodhankar
Counsel for the respondent No.1: Mr.K.V. Simhadri ---
:ORDER:
This Revision Petition is directed against the order dated 16-9-2004 in
I.A.No.287 of 2004 in O.S.No.37 of 2002 on the file of the Court of the Senior
Civil Judge, Bodhan.
The Revision petitioner is the plaintiff in the suit filed for
declaration of title by virtue of adverse possession in respect of the suit
schedule property. The respondents herein are the defendants 1 to 4
respectively in the suit.
For the sake of convenience, the parties shall hereinafter be referred as the
plaintiff and the defendants as they were arrayed in the plaint.
It is not in dispute that the defendants 2 and 3 (the respondents 2 and 3
herein) were set ex parte, and the summons could not be served on the defendant
No.4 for want of correct address. So far as the 1st defendant (respondent No.1
herein) is concerned, though summons were served and the Counsel entered
appearance, since the written statement was not filed, by order dated 14-8-2003
the right to file written statement was forfeited.
While the matter stood posted to 20-8-2004 for furnishing the correct
address of the fourth defendant, on 10-8-2004 the first defendant filed
I.A.No.287 of 2004 under Order VIII Rule 1 of C.P.C. read with Sections 148 and
151 of C.P.C. seeking permission to file written statement by setting aside the
order dated 14-8-2003.
The Assistant General Manager of the first defendant has sworn to the
affidavit in support of the said application stating that she assumed charge on
24-5-2004 and that she came to know that the right to file written statement was
forfeited on 14-8-2003. Then, she took up the matter and personally contacted
their counsel and instructed to file written statement, it is stated that as her
predecessor and herself were very busy in the administrative maters, the written
statement could not be filed within the stipulated time. It was further stated
that the 3rd defendant owes a sum of Rs.9,00,79,943-97 ps and the same has to
be realised by selling away the suit schedule properties which were mortgaged by
the third defendant in favour of the first defendant Bank and that the plaintiff
was in no way concerned with the suit schedule property. In the circumstances,
unless permission is granted to the first defendant to file written statement
they stand to suffer irreparable loss and the amounts due from the third
defendant cannot be recovered.
The Plaintiff filed a counter opposing the said application and stating
that the application filed one year after the order forfeiting the right of the
first defendant to file written statement is not bona fide and absolutely no
satisfactory explanation was offered to set aside the said order and to permit
the first defendant to file written statement. It was also stated that the
averments made in the affidavit filed in support of the application are false,
fictitious and created only for the purpose of filing the application.
The Court below, after hearing both the parties, by order dated 16-9-2004
allowed the petition subject to payment of costs of Rs.200/- on or before 30-9-
2004 failing which petition shall stand dismissed. Aggrieved by the said order,
this Revision Petition is filed by the plaintiff.
I have heard the learned Counsel for both the parties and perused the
material on record.
The learned counsel for the Revision petitioner submits that since the
first defendant failed to file written statement within 90 days as prescribed
under Order VIII Rule 1 of C.P.C., the Court below has rightly forfeited its
right to file written statement. The learned Counsel contends that whereas the
said order forfeiting the right to file written statement was passed on 14-8-
2003, the present application seeking permission to file written statement by
setting aside the order of forfeiture was filed only on 19-9-2004 i.e, after
more than an year which itself shows that the application is not bona fide. The
learned Counsel submits that having regard to the facts and circumstances of the
case the Court below ought to have held that the officials of the first
defendant Bank were guilty of gross negligence and laches and therefore ought
not to have passed any order in their favour.
The further contention of the learned Counsel for the petitioner is that
if a defendant fails to present the written statement within the time permitted
or fixed by the Court, it is obligatory on the part of the Court to pronounce
the judgment. According to the learned Counsel, Rule 1 of Order VIII of C.P.C.
is mandatory and it should be interpreted in strict terms.
On the other hand, the learned Counsel for the first respondent Bank submits
that the impugned order does not suffer from any infirmity warranting
interference by this Court under Article 227 of the Constitution of India.
In NACHIPEDDI RAMASWAMY v. P. BUCHI REDDY1, this Court having considered
the scope and object of Order VIII of Rule 1 of C.P.C. as amended by Act 22 of
2002 as well as Order VIII Rule 10 of C.P.C. held as under :
".... ... Rule 1, 1A and 10 of Order VIII together would show that though a
defendant is required to file written statement within 30 days after receipt of
summons and though the Court can extend the time till 90 days, the Court is not
divested of power to fix further time for filing the written statement. It is
well settled that this cardinal principle of interpretation of law with an
enactment has to be read as a whole and then the entire section has to be read
and thereafter the act has to be interpreted section by section. One Rule or
one Section in the enactment could be a guiding factor for arriving at the
intendment of the Legislature. The very fact that Rule 10 is reintroduced by
Act 22 of 2002 by the Parliament would show that the Parliament never intended
the Civil Court to pronounce judgment immediately after the failure on the part
of the defendant to file written statement within 90 days.
Further, Section 148 C.P.C. empowers the Court to enlarge the time. In
addition to this, we must not forget that the Civil Court being a Court of
equity, justice and good conscience is also vested with inherent powers under
Section 151 CPC to avoid miscarriage of justice. It is always open to the Civil
Court to exercise inherent powers provided such exercise is not totally
derogatory to the main provisions of the Act and the Rules made thereunder."
In CENTENARY BAPTISH CHURCH, NAKKALAGUTTA, HANMKONDA v. SHYAMSUNDER2, it was
held that the Court can extend the time to file the written statement even after
expiry of 90 days provided that the Court finds sufficient cause. The
observations made by this Court in the said case may be extracted as under :
"In appropriate cases the Court can extend time where the ends of justice
require such extension. But at the same time it is to be remembered that when
the defendant fails to file the written statement as directed by the Court, a
vested right accrues to the plaintiff and any order to be passed subsequently
for extension of time shall be passed keeping in view the facts and
circumstances of the case, conduct of the defendant, and the prejudice that
might be caused to the plaintiff in whose favour already a vested right accrued.
Therefore any extension of time for filing the written statement shall be on
reasonable grounds and in exceptional circumstances to render substantial
justice to the parties."
In a recent decision - G.PARIMALA vs. BIMALA BHATIA3, a Division Bench of
this Court also had an occasion to consider the very same question and it has
been held as under :
"... ... Once the Court is empowered to grant time, beyond 30 days, for filing
written statement, the necessary substratum for exercise of power under Section
148 comes into existence. The reason is that the time allowed for filing written
statement beyond 30 days is or becomes, the one "fixed or granted by the Court"
and not the one stipulated by C.P.C. The maximum limit of 90 days, indicated in
the proviso, at the most constitutes a guiding factor for the Courts, in
exercise of their jurisdiction, but not a basis to deny them the power,
specifically conferred under Section 148. Such a construction would accord with
the complete scheme of Order VIII, and Section 148. ...... "
However, in the above case, the Division Bench has disagreed with the view
expressed in NACHIPEDDI RAMASWAMY's case (1 supra) that the inherent power
under Section 151 of C.P.C. can also be exercised for extending the time for
filing the written statement and observed that Section 151 of CPC does not get
attracted to the situations which are governed by specific provisions.
In the light of the ratio laid down in the above cases, I do not find any
substance in the contentions raised by the learned Counsel for the petitioner.
In the case on hand, it is true that the Counsel for the 1st defendant
filed his vakalat on 7-1-2003 and at the request of the first defendant on 11-3-
2003 time for filing its written statement was extended till 9-4-2003.
Thereafter, at the instance of the 1st defendant the matter was adjourned from
time to time by extending the time for filing the written statement and
ultimately the matter was posted to 14-8-2003. However, even on 14-8-2003 the
written statement was not filed and therefore the Court below passed an order
forfeiting the right of the 1st defendant to file the written statement. Since
the 1st defendant could not file the written statement within 90 days as
stipulated under Order VIII Rule 1 of C.P.C., no doubt the order dated 14-8-2003
cannot be held to be erroneous or without jurisdiction. However, the question is
whether it is impermissible to set aside such an order and to grant further
extension of time for filing written statement, in case the 1st defendant makes
out sufficient cause for its failure to file the written statement within the
stipulated period.
As noted above, the law is well settled that the inherent power under Section
151 of C.P.C. cannot be exercised for extending the time for filing the written
statement in view of Section 148 of C.P.C. which specifically provides for
enlargement of time. If the defendant fails to file the written statement within
the time permitted or fixed by the Court, it is not obligatory on the part of
the Court to pronounce the judgment, but in exercise of power under Order 8
Rules 1, 1A & 10 of C.P.C. read with Section 148 of C.P.C. it is always open to
the Court in appropriate cases to extend time to file the written statement.
However, it is necessary for the Court to assign the reasons while granting such
extension. It is true that such extension cannot be granted as a matter of
course, but that can be done only in exceptional circumstances where the
defendant offers acceptable explanation for its failure to file the written
statement within the stipulated period.
In the case on hand, having considered the material on record, the Court below
by a well-reasoned order having expressed its satisfaction as to the explanation
offered by the 1st defendant allowed the application in question. The said
discretion exercised by the Court below cannot be said to be vitiated on
account of any extraneous considerations nor can it be termed as perverse. On a
perusal of the affidavit filed in support of I.A.No.287 of 2004, it cannot be
held that the explanation offered by the 1st defendant was not credible. Since
the first defendant is a Bank, keeping in view the public interest involved the
Court cannot totally ignore the realities in the administrative delays and
therefore a liberal approach is necessary in considering the explanation
offered. Hence, the Court below has rightly allowed the petition on payment of
costs.
For the aforesaid reasons, I do not find any justifiable reason to
interfere with the impugned order which is in accordance with the settled
principles of law. The said order which is not vitiated on account of any patent
error of fact or law, does not warrant interference in exercise of supervisory
jurisdiction under Article 227 of the Constitution of India.
The Revision Petition is devoid of any merit and the same is accordingly
dismissed. No costs.
?1 2003 (4) ALD 648
2 2004 (1) ALD 581
3 2005 (3) ALD 867 (DB)
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