Or. 8, Rule 1 - is not mandatory - time can be granted beyond 90 days on sufficient cause - forfeiture of written statement order - petition to set aside the forfeiture order - dismissed - High court held that when there are valid reasons, the Courts can grant some more time. But that should not give an impression to the parties that there is no need to adhere to the time fixed under
Order VIII Rule 1 CPC. The Court below should have granted some time, i.e., 2 or 3 days or at the most one week time by imposing reasonable costs. Of course, the Court below should have insisted the defendants to file an application seeking time. The right to file the written statement is forfeited on 06.03.2014. The defendants have filed an application on 12.03.2014. According to the defendants, one of their close relatives was injured and admitted in hospital. They have also mentioned that they would suffer great loss and hardship if they
do not contest the matter.it appears that there are laches on the part of the defendants. But merely because there are laches on the part of the defendants, their right to file the written statement should not be forfeited and reasonable costs should be imposed. Accordingly, on payment of costs of Rs.5,000/- (Rupees five thousand only) by the petitioners herein to the respondents herein within a period of ten (10) days from today, the CRP stands allowed and the impugned order stands set aside. It is made clear that the respondents shall file their written statement within a period of five (05) days from the date of payment of costs to the
other side and the Court below shall receive the same.=
The petitioners herein are the defendants in the suit. The
brief facts of the case are that the petitioners received summons
on 05.12.2013.
On 31.12.2013, counsel for the petitioners filed
vakalat and requested time to file written statement. The case
was adjourned to 03.01.2014 and from that date to 03.02.2014
and lastly to 06.03.2014, i.e., the 90th day for filing the written
statement.
On the 90th day also, the defendants did not file
written statement, but their counsel sought further time.
The
Court below, without acceding to the request of the counsel for
the defendants, forfeited the right of the defendants to file the
written statement.
Then the defendants filed a petition to set
aside the order dated 06.03.2014 and to permit them to file the
written statement, which has been dismissed vide impugned
order.=
whether the period of 90 days prescribed
as above is mandatory or directory and whether the Courts can
extend further time when the party assigns sufficient reasons for
extending time.=
The Apex Court, in the case between Mohammad Yusuf Vs.
Faij Mohammad and others observed as follows:-
A dispensation that makes Order 8 Rule 1
directory, leaving it to the courts to extend the time
indiscriminately would tend to defeat the object sought
to be achieved by the amendments to the Code. It is,
therefore, necessary to emphasise that the grant of
extension of time beyond 30 days is not automatic, that it
should be exercised with caution and for adequate
reasons and that an extension of time beyond 90 days of
the service of summons must be granted only based on a
clear satisfaction of the justification for granting such
extension, the court being conscious of the fact that even
the power of the court for extension inhering in Section
148 of the Code, has also been restricted by the
legislature. It would be proper to encourage the belief in
litigants that the imperative of Order 8 Rule 1 must be
adhered to and that only in rare and exceptional case,
will the breach thereof will be condoned. Such an
approach by courts alone can carry forward the
legislative intent of avoiding delays or at least in
curtailing the delays in the disposal of suits filed in
courts.
The Courts have to adopt just and reasonable procedure.
Whenever discretion has been given to the Courts, such discretion
has to be exercised cautiously. The above referred judgments
make it clear that when there are valid reasons, the Courts can
grant some more time. But that should not give an impression to
the parties that there is no need to adhere to the time fixed under
Order VIII Rule 1 CPC.
In the instant case, it appears that the counsel for the
defendants have requested time on 06.03.2014. The Court below
should have granted some time, i.e., 2 or 3 days or at the most one
week time by imposing reasonable costs. Of course, the Court
below should have insisted the defendants to file an application
seeking time. The right to file the written statement is forfeited
on 06.03.2014. The defendants have filed an application on
12.03.2014. According to the defendants, one of their close
relatives was injured and admitted in hospital. They have also
mentioned that they would suffer great loss and hardship if they
do not contest the matter.
In the circumstances, it appears that there are laches on the
part of the defendants. But merely because there are laches on
the part of the defendants, their right to file the written statement
should not be forfeited and reasonable costs should be imposed.
Accordingly, on payment of costs of Rs.5,000/- (Rupees five
thousand only) by the petitioners herein to the respondents
herein within a period of ten (10) days from today, the CRP stands
allowed and the impugned order stands set aside. It is made clear
that the respondents shall file their written statement within a
period of five (05) days from the date of payment of costs to the
other side and the Court below shall receive the same.
THE HONOURABLE SRI JUSTICE B.CHANDRA KUMAR
CIVIL REVISION PETITION No.2394 of 2014
12-08-2014
Chelimilla Chinna Venkataswamy and othersPetitioners
Billapuram Gopala Krishna and othersRespondents
Counsel for the Petitioners:Prakash Reddy, Advocate
Counsel for the Respondents: Venkata Subba Rao, Advocate
<Gist :
>Head Note:
Cases Referred:
1.(2005) 4 SCC 480
2.2009 (3) SCJ 517
THE HONBLE MR. JUSTICE B.CHANDRA KUMAR
C.R.P.No.2394 of 2014
ORDER:-
This C.R.P. has been filed challenging the order dated
26.06.2014 passed in C.F.R.No.307 of 2014 in O.S.No.102 of 2013
by the Junior Civil Judge, Atmakur.
The petitioners herein are the defendants in the suit. The
brief facts of the case are that the petitioners received summons
on 05.12.2013. On 31.12.2013, counsel for the petitioners filed
vakalat and requested time to file written statement. The case
was adjourned to 03.01.2014 and from that date to 03.02.2014
and lastly to 06.03.2014, i.e., the 90th day for filing the written
statement. On the 90th day also, the defendants did not file
written statement, but their counsel sought further time. The
Court below, without acceding to the request of the counsel for
the defendants, forfeited the right of the defendants to file the
written statement. Then the defendants filed a petition to set
aside the order dated 06.03.2014 and to permit them to file the
written statement, which has been dismissed vide impugned
order.
The main contention of the learned counsel for the
petitioners herein/defendants is that the Court below ought to
have considered the facts and circumstances of the case and
granted some time since Order VIII Rule 1 CPC has to be treated
as directory in nature.
On the other hand, learned counsel for the respondents
herein/plaintiffs submitted that the defendants have not filed the
written statement within the stipulated time even after taking
adjournments on three occasions and that they ought to have filed
an application assigning valid reasons on 06.03.2014 and since
they have failed to do so, the Court below rightly dismissed the
petition and that there are no grounds to interfere with the
reasoned order passed by the Court below.
Order VIII Rule 1 C.P.C. is as follows:-
The defendant shall, within thirty days from the
date of service of summons on him, present a written
statement of his defence.
Provided that where the defendant fails to file
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.
The main issue is whether the period of 90 days prescribed
as above is mandatory or directory and whether the Courts can
extend further time when the party assigns sufficient reasons for
extending time. The main object of the above provision is to avoid
delays in conducting trials in civil cases. The Apex Court, in the
case between Kailash Vs. Nanhku and others , while dealing
with Order VIII Rule 1 CPC, observed that the provision, being in
the domain of procedural law, it has to be held directory and not
mandatory. It was further held that the power of the Court to
extend time for filing the written statement beyond the time
schedule provided by Order VIII Rule 1 CPC is not completely
taken away. In the same judgment, it was held as follows:-
A prayer for extension of time made by the
defendant shall not be granted just as a matter of routine
and merely for asking, more so, when the period of 90
days has expired. Extension of time may be allowed by
way of an exception, for reasons to be assigned by the
defendant and also be placed on record in writing,
howsoever briefly, by the Court on its being satisfied.
Extension of time may be allowed if it was needed to be
given for the circumstances which are exceptional,
occasioned by reasons beyond the control of the
defendant and grave injustice would be occasioned if the
time was not extended. Costs may be imposed and
affidavit or documents in support of the grounds pleaded
by the defendant for extension of time may be demanded,
depending on the facts and circumstances of the given
case.
The Apex Court, in the case between Mohammad Yusuf Vs.
Faij Mohammad and others observed as follows:-
A dispensation that makes Order 8 Rule 1
directory, leaving it to the courts to extend the time
indiscriminately would tend to defeat the object sought
to be achieved by the amendments to the Code. It is,
therefore, necessary to emphasise that the grant of
extension of time beyond 30 days is not automatic, that it
should be exercised with caution and for adequate
reasons and that an extension of time beyond 90 days of
the service of summons must be granted only based on a
clear satisfaction of the justification for granting such
extension, the court being conscious of the fact that even
the power of the court for extension inhering in Section
148 of the Code, has also been restricted by the
legislature. It would be proper to encourage the belief in
litigants that the imperative of Order 8 Rule 1 must be
adhered to and that only in rare and exceptional case,
will the breach thereof will be condoned. Such an
approach by courts alone can carry forward the
legislative intent of avoiding delays or at least in
curtailing the delays in the disposal of suits filed in
courts.
The Courts have to adopt just and reasonable procedure.
Whenever discretion has been given to the Courts, such discretion
has to be exercised cautiously. The above referred judgments
make it clear that when there are valid reasons, the Courts can
grant some more time. But that should not give an impression to
the parties that there is no need to adhere to the time fixed under
Order VIII Rule 1 CPC.
In the instant case, it appears that the counsel for the
defendants have requested time on 06.03.2014. The Court below
should have granted some time, i.e., 2 or 3 days or at the most one
week time by imposing reasonable costs. Of course, the Court
below should have insisted the defendants to file an application
seeking time. The right to file the written statement is forfeited
on 06.03.2014. The defendants have filed an application on
12.03.2014. According to the defendants, one of their close
relatives was injured and admitted in hospital. They have also
mentioned that they would suffer great loss and hardship if they
do not contest the matter.
It has to be seen that the valuable rights of the parties will
be involved in a litigation and it is always better if the matters are
disposed of on merits than on technicalities. The Courts should
be neither too liberal nor too harsh. The procedural law should
not result in rendering substantial injustice to the parties. The
Courts have to adopt the methods to compel the parties to adhere
to the procedure and where the circumstances warrant, short
adjournments and reasonable costs have to be imposed. If the
parties, in spite of granting short adjournment and imposing
costs, do not comply with the procedure or the directions of the
Court, then the Courts have to use their discretion and pass
appropriate and reasonable orders. There is no hard and fast rule
on this aspect and it all depends upon the facts and circumstances
of each particular case.
In the circumstances, it appears that there are laches on the
part of the defendants. But merely because there are laches on
the part of the defendants, their right to file the written statement
should not be forfeited and reasonable costs should be imposed.
Accordingly, on payment of costs of Rs.5,000/- (Rupees five
thousand only) by the petitioners herein to the respondents
herein within a period of ten (10) days from today, the CRP stands
allowed and the impugned order stands set aside. It is made clear
that the respondents shall file their written statement within a
period of five (05) days from the date of payment of costs to the
other side and the Court below shall receive the same.
With the above observations, the CRP is disposed of. There
shall be no order as to costs.
Miscellaneous petitions, if any, pending in this CRP, shall
stand closed.
____________________________
Justice B.Chandra Kumar
12th August, 2014
Order VIII Rule 1 CPC. The Court below should have granted some time, i.e., 2 or 3 days or at the most one week time by imposing reasonable costs. Of course, the Court below should have insisted the defendants to file an application seeking time. The right to file the written statement is forfeited on 06.03.2014. The defendants have filed an application on 12.03.2014. According to the defendants, one of their close relatives was injured and admitted in hospital. They have also mentioned that they would suffer great loss and hardship if they
do not contest the matter.it appears that there are laches on the part of the defendants. But merely because there are laches on the part of the defendants, their right to file the written statement should not be forfeited and reasonable costs should be imposed. Accordingly, on payment of costs of Rs.5,000/- (Rupees five thousand only) by the petitioners herein to the respondents herein within a period of ten (10) days from today, the CRP stands allowed and the impugned order stands set aside. It is made clear that the respondents shall file their written statement within a period of five (05) days from the date of payment of costs to the
other side and the Court below shall receive the same.=
The petitioners herein are the defendants in the suit. The
brief facts of the case are that the petitioners received summons
on 05.12.2013.
On 31.12.2013, counsel for the petitioners filed
vakalat and requested time to file written statement. The case
was adjourned to 03.01.2014 and from that date to 03.02.2014
and lastly to 06.03.2014, i.e., the 90th day for filing the written
statement.
On the 90th day also, the defendants did not file
written statement, but their counsel sought further time.
The
Court below, without acceding to the request of the counsel for
the defendants, forfeited the right of the defendants to file the
written statement.
Then the defendants filed a petition to set
aside the order dated 06.03.2014 and to permit them to file the
written statement, which has been dismissed vide impugned
order.=
whether the period of 90 days prescribed
as above is mandatory or directory and whether the Courts can
extend further time when the party assigns sufficient reasons for
extending time.=
The Apex Court, in the case between Mohammad Yusuf Vs.
Faij Mohammad and others observed as follows:-
A dispensation that makes Order 8 Rule 1
directory, leaving it to the courts to extend the time
indiscriminately would tend to defeat the object sought
to be achieved by the amendments to the Code. It is,
therefore, necessary to emphasise that the grant of
extension of time beyond 30 days is not automatic, that it
should be exercised with caution and for adequate
reasons and that an extension of time beyond 90 days of
the service of summons must be granted only based on a
clear satisfaction of the justification for granting such
extension, the court being conscious of the fact that even
the power of the court for extension inhering in Section
148 of the Code, has also been restricted by the
legislature. It would be proper to encourage the belief in
litigants that the imperative of Order 8 Rule 1 must be
adhered to and that only in rare and exceptional case,
will the breach thereof will be condoned. Such an
approach by courts alone can carry forward the
legislative intent of avoiding delays or at least in
curtailing the delays in the disposal of suits filed in
courts.
The Courts have to adopt just and reasonable procedure.
Whenever discretion has been given to the Courts, such discretion
has to be exercised cautiously. The above referred judgments
make it clear that when there are valid reasons, the Courts can
grant some more time. But that should not give an impression to
the parties that there is no need to adhere to the time fixed under
Order VIII Rule 1 CPC.
In the instant case, it appears that the counsel for the
defendants have requested time on 06.03.2014. The Court below
should have granted some time, i.e., 2 or 3 days or at the most one
week time by imposing reasonable costs. Of course, the Court
below should have insisted the defendants to file an application
seeking time. The right to file the written statement is forfeited
on 06.03.2014. The defendants have filed an application on
12.03.2014. According to the defendants, one of their close
relatives was injured and admitted in hospital. They have also
mentioned that they would suffer great loss and hardship if they
do not contest the matter.
In the circumstances, it appears that there are laches on the
part of the defendants. But merely because there are laches on
the part of the defendants, their right to file the written statement
should not be forfeited and reasonable costs should be imposed.
Accordingly, on payment of costs of Rs.5,000/- (Rupees five
thousand only) by the petitioners herein to the respondents
herein within a period of ten (10) days from today, the CRP stands
allowed and the impugned order stands set aside. It is made clear
that the respondents shall file their written statement within a
period of five (05) days from the date of payment of costs to the
other side and the Court below shall receive the same.
2014 - Aug. Month - http://judis.nic.in/judis_andhra/filename=11821
CIVIL REVISION PETITION No.2394 of 2014
12-08-2014
Chelimilla Chinna Venkataswamy and othersPetitioners
Billapuram Gopala Krishna and othersRespondents
Counsel for the Petitioners:Prakash Reddy, Advocate
Counsel for the Respondents: Venkata Subba Rao, Advocate
<Gist :
>Head Note:
Cases Referred:
1.(2005) 4 SCC 480
2.2009 (3) SCJ 517
THE HONBLE MR. JUSTICE B.CHANDRA KUMAR
C.R.P.No.2394 of 2014
ORDER:-
This C.R.P. has been filed challenging the order dated
26.06.2014 passed in C.F.R.No.307 of 2014 in O.S.No.102 of 2013
by the Junior Civil Judge, Atmakur.
The petitioners herein are the defendants in the suit. The
brief facts of the case are that the petitioners received summons
on 05.12.2013. On 31.12.2013, counsel for the petitioners filed
vakalat and requested time to file written statement. The case
was adjourned to 03.01.2014 and from that date to 03.02.2014
and lastly to 06.03.2014, i.e., the 90th day for filing the written
statement. On the 90th day also, the defendants did not file
written statement, but their counsel sought further time. The
Court below, without acceding to the request of the counsel for
the defendants, forfeited the right of the defendants to file the
written statement. Then the defendants filed a petition to set
aside the order dated 06.03.2014 and to permit them to file the
written statement, which has been dismissed vide impugned
order.
The main contention of the learned counsel for the
petitioners herein/defendants is that the Court below ought to
have considered the facts and circumstances of the case and
granted some time since Order VIII Rule 1 CPC has to be treated
as directory in nature.
On the other hand, learned counsel for the respondents
herein/plaintiffs submitted that the defendants have not filed the
written statement within the stipulated time even after taking
adjournments on three occasions and that they ought to have filed
an application assigning valid reasons on 06.03.2014 and since
they have failed to do so, the Court below rightly dismissed the
petition and that there are no grounds to interfere with the
reasoned order passed by the Court below.
Order VIII Rule 1 C.P.C. is as follows:-
The defendant shall, within thirty days from the
date of service of summons on him, present a written
statement of his defence.
Provided that where the defendant fails to file
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.
The main issue is whether the period of 90 days prescribed
as above is mandatory or directory and whether the Courts can
extend further time when the party assigns sufficient reasons for
extending time. The main object of the above provision is to avoid
delays in conducting trials in civil cases. The Apex Court, in the
case between Kailash Vs. Nanhku and others , while dealing
with Order VIII Rule 1 CPC, observed that the provision, being in
the domain of procedural law, it has to be held directory and not
mandatory. It was further held that the power of the Court to
extend time for filing the written statement beyond the time
schedule provided by Order VIII Rule 1 CPC is not completely
taken away. In the same judgment, it was held as follows:-
A prayer for extension of time made by the
defendant shall not be granted just as a matter of routine
and merely for asking, more so, when the period of 90
days has expired. Extension of time may be allowed by
way of an exception, for reasons to be assigned by the
defendant and also be placed on record in writing,
howsoever briefly, by the Court on its being satisfied.
Extension of time may be allowed if it was needed to be
given for the circumstances which are exceptional,
occasioned by reasons beyond the control of the
defendant and grave injustice would be occasioned if the
time was not extended. Costs may be imposed and
affidavit or documents in support of the grounds pleaded
by the defendant for extension of time may be demanded,
depending on the facts and circumstances of the given
case.
The Apex Court, in the case between Mohammad Yusuf Vs.
Faij Mohammad and others observed as follows:-
A dispensation that makes Order 8 Rule 1
directory, leaving it to the courts to extend the time
indiscriminately would tend to defeat the object sought
to be achieved by the amendments to the Code. It is,
therefore, necessary to emphasise that the grant of
extension of time beyond 30 days is not automatic, that it
should be exercised with caution and for adequate
reasons and that an extension of time beyond 90 days of
the service of summons must be granted only based on a
clear satisfaction of the justification for granting such
extension, the court being conscious of the fact that even
the power of the court for extension inhering in Section
148 of the Code, has also been restricted by the
legislature. It would be proper to encourage the belief in
litigants that the imperative of Order 8 Rule 1 must be
adhered to and that only in rare and exceptional case,
will the breach thereof will be condoned. Such an
approach by courts alone can carry forward the
legislative intent of avoiding delays or at least in
curtailing the delays in the disposal of suits filed in
courts.
The Courts have to adopt just and reasonable procedure.
Whenever discretion has been given to the Courts, such discretion
has to be exercised cautiously. The above referred judgments
make it clear that when there are valid reasons, the Courts can
grant some more time. But that should not give an impression to
the parties that there is no need to adhere to the time fixed under
Order VIII Rule 1 CPC.
In the instant case, it appears that the counsel for the
defendants have requested time on 06.03.2014. The Court below
should have granted some time, i.e., 2 or 3 days or at the most one
week time by imposing reasonable costs. Of course, the Court
below should have insisted the defendants to file an application
seeking time. The right to file the written statement is forfeited
on 06.03.2014. The defendants have filed an application on
12.03.2014. According to the defendants, one of their close
relatives was injured and admitted in hospital. They have also
mentioned that they would suffer great loss and hardship if they
do not contest the matter.
It has to be seen that the valuable rights of the parties will
be involved in a litigation and it is always better if the matters are
disposed of on merits than on technicalities. The Courts should
be neither too liberal nor too harsh. The procedural law should
not result in rendering substantial injustice to the parties. The
Courts have to adopt the methods to compel the parties to adhere
to the procedure and where the circumstances warrant, short
adjournments and reasonable costs have to be imposed. If the
parties, in spite of granting short adjournment and imposing
costs, do not comply with the procedure or the directions of the
Court, then the Courts have to use their discretion and pass
appropriate and reasonable orders. There is no hard and fast rule
on this aspect and it all depends upon the facts and circumstances
of each particular case.
In the circumstances, it appears that there are laches on the
part of the defendants. But merely because there are laches on
the part of the defendants, their right to file the written statement
should not be forfeited and reasonable costs should be imposed.
Accordingly, on payment of costs of Rs.5,000/- (Rupees five
thousand only) by the petitioners herein to the respondents
herein within a period of ten (10) days from today, the CRP stands
allowed and the impugned order stands set aside. It is made clear
that the respondents shall file their written statement within a
period of five (05) days from the date of payment of costs to the
other side and the Court below shall receive the same.
With the above observations, the CRP is disposed of. There
shall be no order as to costs.
Miscellaneous petitions, if any, pending in this CRP, shall
stand closed.
____________________________
Justice B.Chandra Kumar
12th August, 2014
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