Wednesday 20 April 2016

When court can allow defendant to file written statement at belated stage?

In  M/s. R.N.Jadi and Brothers & Ors.v. Subhashchandra's  case, the legal
position in this regard was clarified with following observations. 
“The provision does not deal with the power of the Court and also does
not specifically take away the power of the Court to take the written statement on
record though filed beyond the time as provided for.  Further the nature of the
provisions contained in Order VIII Rule 1 is procedural.  It is not the part of the
substantive law.   In other words, object is to expedite the hearing and not to
scuttle the same. The balance has to be maintained by the Court.  While justice
delayed may amount to justice denied and justice hurried in some cases may
amount to justice buried.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.4400/2012
PETITIONER :­ Ravindralal   Biharilal   Srivastava,
...VERSUS... 
RESPONDENTS :­ 1) Vimalkumar   Santlal   Srivastava, 
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
      CORAM : A. P. BHANGALE, J.
     DATED   : 27.06.2013
Citation; 2015 (7) ALLMR202

1. Rule.  Rule made returnable forthwith. The petition is taken up for
final hearing with the consent of the learned counsel for the parties. 
2. Considering that the interim order passed by the 2nd  Joint Civil
Judge, Senior Division on 04/08/2012  is questioned in the instant petition whereby
permission to take the written statement on record for   to defend Special Civil Suit
No.1056/2010 was refused  by the trial Court on the ground that the defendant No.1
(petitioner) was not diligent enough to fulfill his undertaking. 
3. Learned   counsel   on   behalf   of   the   petitioner   (defendant   No.1)
submitted that suit was for instituted  for  the recovery of damages claimed in the sum
of rupees five crore on account of alleged malicious arrest and illegal detention  of the
plaintiff resulting in defamation of the plaintiff, who is a mechanical engineer and
served in Nagpur Engineering Company in the year 1998 and after resigning, he joined
another company by name Sricon Infrastructure Private Limited.  
4. I need not enter into details of facts pleaded, as the question is
raised regarding the procedure arising under Order VIII Rule 1 of Civil Procedure Code.
In a given case when time limit is fixed for filing written statement, normal rule is that
written statement has to be filed within time limit, allowed by the Court as compliance

of time limit can ensure smooth  progress of the suit, early hearing thereof and justice
according to law.  Learned  counsel for the petitioner (defendant No.1) submitted that
in the interest of substantial justice, the defendant No.1 ought to have been permitted
to place his written statement on record, which according to the learned counsel for the
petitioner (defendant       No.1), is already placed   on record of the trial Court.   In
support of these submissions, a reference is made to the ruling in M/s. R. N. Jadi and
Brothers & Ors. v. Subhashchandra, reported in AIR 2007 SC 2571.  It was held in
view of a decision of the Apex Court in Kailash v. Nanhku and Ors. (2005 (4) SCC 480)
wherein it was observed that the provisions of Order VIII Rule 1 CPC are directory, the
reasons   justifying   the   delayed   presentation   of   the   written   statement   could   be
satisfactorily explained.
5. On behalf of the respondent No.1 (plaintiff),  reference is made to
the rulings in Kailash v. Nanhku and others, reported in AIR 2005 SC 2441 and M/s.
Aditya Hotels (P) Ltd. v. Bombay Swadeshi Stores Ltd.& Ors., reported in AIR 2007
SC 1574.  The Hon'ble Supreme Court of India in the ruling of  Kailash v. Nanhku and
others, held that –  
“The object and purpose behind enacting Order VIII Rule 1 of the Civil
Procedure Code 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 beyond time limits as referred to in the said
provision.  However, the extension of time shall be only by way of exception and
for reasons to be recorded in writing.  Furthermore, it is also concluded in para 45
that ordinarily the time schedule contained in the provision is to be followed and
departure their from would be by way of exception.”
6. In  M/s. R.N.Jadi and Brothers & Ors.v. Subhashchandra's  case, the legal
position in this regard was clarified with following observations. 
“The provision does not deal with the power of the Court and also does
not specifically take away the power of the Court to take the written statement on
record though filed beyond the time as provided for.  Further the nature of the
provisions contained in Order VIII Rule 1 is procedural.  It is not the part of the
substantive law.   In other words, object is to expedite the hearing and not to
scuttle the same. The balance has to be maintained by the Court.  While justice
delayed may amount to justice denied and justice hurried in some cases may
amount to justice buried.”
7. Thus, having considering the pros and cons of the  legal position
stated and explained by the Hon'ble Supreme Court and  particularly considering the
nature of  the claim and the relief sought in the pending  suit for recovery of damages
in the sum of rupees five crore on account of alleged malicious arrest, illegal detention
and   defamation   and  even  considering   the   submissions  advanced   on   behalf   of   the
respondent No.1 that the petitioner (defendant No.1) in the  pending suit had in fact
filed precipe  with undertaking to file the written statement, the petitioner (defendant

No.1)  ought  to  have  filed the  written  statement on   record within  the  time  limit.
However, the defendant No.1 continued to cause delay in filing the written statement
and, therefore, the trial Court had passed the impugned order.  Learned counsel for the
respondent No.1 criticised the conduct of the petitioner (defendant No.1) to protract
the   proceedings   before   the   trial   Court   by   seeking   adjournments   to   file   written
statement and also causing breach of the undertaking given to the Court to file the
written statement earlier. 
8. By this  time, though  by way of rule, the  petitioner  (defendant
No.1)   may   not   have   been   allowed   to   file   written   statement   in   case   breach   of
undertaking and unnecessary adjournments,   I think in the ,paramount interest of
substantial justice, considering the nature of suit claim and the  fact that the petitioner
(defendant No.1) failed to file the written statement on record, one more opportunity
may be granted in favour of the petitioner (defendant No.1) to permit him to submit
the written statement on record by imposing reasonable cost in the sum of Rs.10,000/­
upon him for availing this opportunity to submit the written statement on record.  
9. For the reasons aforesaid, the impugned order is quashed and set
aside.  The petitioner (defendant No.1) is   directed to submit the written statement on
record subject to payment of costs of Rs.10,000/­ to the respondent No.1 (plaintiff) as
condition precedent for considering the written statement already placed on the record

of the trial Court.  The petitioner (defendant No.1) shall, after his written statement is
taken on record for the purpose of framing the issues pursuant to this order, cooperate
for early hearing and disposal  of the suit in the trial Court.  The trial Court is requested
to       expedite the hearing of the suit and to decide the same on merits and according
to law   as  early as possible. 
10. Rule is made absolute in the aforesaid terms with no  more order as
costs in the sum of Rs 10,000/­ is imposed upon the defendant.(Petitioner herein)
11. Learned   counsel   for   the   respondent   No.1   (plaintiff)   prayed   for
staying the operation of this order for a period of four weeks.  I think, considering that
the suit is pending since long, period of four weeks would not be inordinately  long
period  as respondents are entitled to avail of further  remedy as may be advised.
Operation of this order shall remain stayed for four weeks from the date of this order. 
                  JUDGE

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