2010 ALL MR (Supp.) 251
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)

R.M. SAVANT, J.

Shri. Somnath Gokuldas Xete Shirodkar & Ors. Vs. Shri. Atchut Roghunath Xete Shirodkar & Ors.

Writ Petition No.444 of 2003

16th November, 2009

Petitioner Counsel: Mr. D. PANGAM
Respondent Counsel: Mr. S. S. KAKODKAR

Civil P.C. (1908), O.8, R.1 - Scope and applicability of - Provisions of O.8, R.1 are directory and not mandatory. 2005(5) ALL MR (S.C.) 876 - Ref. to. (Para 10)

Cases Cited:
Salem Advocate Bar Association, T.N. Vs. Union of India, 2005(5) ALL MR 876 (S.C.) =(2005)6 S.C.C. 344 [Para 7,11]
Kaluba Madhavrao Upase Vs. Rangubai Rajabhau Atole, 2007(4) ALL MR 252 =2007 (Supp.) Bom.C.R. 641 [Para 7]
Chintaman Sukhdeo Kaklij Vs. Shivaji Bhausaheb Gadhe, 2004(5) Bom.C.R. 573 [Para 7,10,11]


JUDGMENT

JUDGMENT :- The Petitioners herein take exception to the Order dated 01.07.2003, passed by the learned Civil Judge, Junior Division, 'C' Court, Margao, by which order the application filed by the Petitioners for taking their written statement on record, has been rejected.

2. The facts necessary for adjudication of the matter are stated thus :

The Petitioners herein are the original Defendant Nos.1(a) to 1(g), 2 to 20, 23 and 24 in the suit filed by the Respondent Nos.1 and 2 herein for declaration and cancellation of Sale Deeds dated 29.01.1983, 09.12.1994 and 09.01.1995. In so far as the Defendant Nos.1(a) to 1(d), 2 to 16 are concerned, they were served with the suit summons on 02.11.2002. In so far as the Defendant Nos.17, 18 and 25 are concerned, they were served with the suit summons on 01.11.2002 and so far as the Defendant Nos.19, 20, 23 and 24 are concerned, they were served with the suit summons on 14.11.2002. The Defendant Nos.1(e), 1(f) and 1(g) and Defendant Nos.21 and 22 were not served with the suit summons, however, they filed their Wakalatnama on 18.02.2003, coming to know of the suit being filed against them as the parties above named are related to each other.

3. The suit was placed for hearing on 30.01.2003, on which date, on account of the absence of the Advocate for the Petitioners, the Petitioners were marked ex-parte and a no written statement Order was also passed and the suit was fixed for further hearing thereafter. The Petitioners moved an application on 17.02.2003 for setting aside the said Order of ex-parte against the Petitioners as also the order of no written statement. In the said application it was, inter alia, mentioned that the Petitioners' Advocate one Shri. L. P. Shirodkar, whom they had appointed, had asked one of his colleagues to appear in the matter on 30.01.2003, however, the said colleague of the Petitioners' Advocate reached the Court dealing with the said suit late, as a result of which, the said ex-parte and no written statement Order came to be passed against the Petitioners. It was further averred in the said application that the absence of the Petitioners was not on account of any negligence or deliberate but was on account of circumstances which were beyond their control.

4. The said application was opposed by the Respondent Nos.1 and 2 herein, who are the original plaintiffs. It was contended in the said reply that the Petitioners were obliged to file their written statement within thirty days as per Order 8, Rule 1 of the Civil Procedure Code and, in the application, the Petitioners have not mentioned any specific ground as to why they could not file their written statements or as to why they could not appear on 30.01.2003.

5. The said application was considered by the Trial Court and by the impugned Order, the Trial Court set aside the ex-parte Order passed against the Petitioners, however, has refused to set aside the no written statement Order which has been passed against them. As indicated above, it is against this Order the Petitioners have filed the instant Petition.

6. Heard the learned Counsel for the parties.

7. Shri. Pangam, the learned Counsel for the Petitioners, submitted that in view of the fact that the learned Advocate for the Petitioners did not remain present on 30.01.2003, which was the date on which the suit was kept for hearing, that the said ex-parte and no written statement Order came to be passed against the Petitioners, as otherwise, the Petitioners were intending to seek time for filing of their written statement. It was further contended that though the application has been filed beyond the period of thirty days in respect of some of the Defendants, the said application has been filed much before the ninety days period had come to an end. It is further contended by Shri. Pangam, that some of the Defendants i.e. Defendant Nos.1(e) to 1(g), 21 and 22, have not even been served with the suit summons but the said Defendants have filed their Wakalatnama on acquiring knowledge of the suit being filed as the parties are related and, being so, limitation, if any, for filing the written statement as postulated in Order 8, Rule 1, should have been reckoned from 18.02.2003. The learned Counsel further submitted that the provisions of Order 8, Rule 1 have been held to be directory and not mandatory and this Court is not powerless if sufficient grounds are made out as to why the written statement has not been filed within the stipulated time. The learned Counsel relied upon the Judgment of the Apex Court in the matter of Salem Advocate Bar Association, T.N. Vs. Union of India, reported in (2005)6 S.C.C. 344 : [2005(5) ALL MR 876 (S.C.)], wherein the Apex Court has considered the amendments which have been introduced in the Civil Procedure Code in the year 2002 and the Apex Court has upheld the constitutionality of the said amendments. In so far as Order 8, Rule 1 is concerned, paragraph 20 of the said report is material and is reproduced herein below :

"20. The use of the word "shall" in Order 8, Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word shall is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice."

The Apex Court, has therefore, held that Order 8, Rule 1 being procedural and since procedure is the handmaid of justice, a strict interpretation would defeat justice. Shri Pangam also referred to the Judgment of a learned Single Judge of this Court reported in 2007 (Supp.) Bom.C.R. 641 : [2007(4) ALL MR 252] in the matter of Kaluba Madhavrao Upase Vs. Rangubai Rajabhau Atole & Ors., wherein replying upon a Judgment of Division Bench of this Court reported in 2004(5) Bom.C.R. 573 in the matter of Chintaman Sukhdeo Kaklij Vs. Shivaji Bhausaheb Gadhe & Ors., the learned Single Judge held that the Court has the discretion to permit the Defendants to file written statement beyond the period of ninety days in exceptional and extraordinary circumstances. Paragraph 7 of the said Judgment is relevant and is reproduced herein under :

"7. I have heard learned Counsel for the Petitioners and learned Counsel for the respondent Nos.1 to 3. Learned Counsel for the petitioner drew my attention to the judgment of Division Bench of this Court, reported in 2004(5) Bom.C.R. 573 : 2004(4) Mh.L.J. 739, in the matter of (Chintaman Sukhdeo Kaklij Vs. Shivaji Bhausaheb Gadhe & others). The issue regarding as to whether the time for filing of written statement could be extended beyond the period of ninety days stipulated under Order 8, Rule 1, was referred to the Division Bench in view of the Divergence of views between two learned Single Judges of this Court, namely Vagyani, J. in the judgment reported in (Prabhakar Vs. Bhagwan), 2004(5) Bom.C.R. (A.B.) 568 : 2004(2) Mh.L.J. 1058 and D. B. Bhosale, J. In the judgment reported in (Shailaja A. Sawant Vs. Sayajirao), 2004(5) Bom.C.R. 548 : 2004(2) Mh.L.J. 419. On the reference made to the Division Bench, the Division Bench (Coram : A. P. Shah and S. U. Kamdar, JJ.) have gone through the entire scheme of Order 8 and Order 5 of Civil Procedure Code and have come to the conclusion that the time limit, prescribed in Order 8, Rule 1 of Civil Procedure Code, as regards filing of written statement, cannot be construed as mandatory. In exceptional and extraordinary circumstances, the Court has discretion to permit the defendant to file written statement beyond the period of 90 days. Relevant observations of the said judgment of the Division Bench, are reproduced hereunder :

"29. In our opinion, harmonious reading of Rules 1, 5, 9 and 10 of Order 8 of Civil Procedure Code would indicate that in exceptional and extraordinary cases the Court has discretion to permit the defendant to file the written statement beyond the period of 90 days stipulated under Rule 1, Order 8 of the Civil Procedure Code."

In the light of the said judgment of the Division Bench, which specifically dealt with the issue of extension of time for filing of written statement, the facts of the instance case would have to be considered."

8. Per contra, Shri. Kakodkar, the learned Counsel appearing for the Respondent Nos.1 and 2, who are the main contesting Respondents, submitted that the instant case is such that the negligence and indolence of the Petitioners is writ large on the proceedings. The learned Counsel submitted that the reasons given by the Petitioners for their non-appearance on 30.01.2003 cannot be accepted as the Petitioners should have taken due care as that was the date on which, the said period of ninety days in respect of some of the Defendants, was coming to an end. The learned Counsel further submitted that if the Petitioners had filed their application within the period of thirty days, then the Court could have considered the reasons mentioned by them. However, apart from the fact that the application was not filed within a period of thirty days to compound matters, the Petitioners have not mentioned any reason worthy of acceptance. The learned Counsel submitted that the Petitioners were also slow in filing the Wakalatnamas which were only filed on 18.02.2003 and 20.03.2003. The learned Counsel, therefore, submitted that the Petitioners cannot be shown any indulgence by this Court.

9. I have heard the rival contentions. In the instant case, it is pertinent to note that some of the Defendants i.e. Defendant Nos.1(a) to 1(d), 2 to 16 have been served on 02.11.2002 and the ninety days period was to come to an end on 01.02.2003. The Defendant Nos.17, 18 and 25 were served on 01.11.2002 and, therefore, the ninety days period had come to an end on 30.01.2003. The Defendant Nos.19, 20, 23 and 24 were served on 14.11.2002 and the ninety days period in respect of the said Defendants had to come to an end on 12.02.2003. It would be pertinent to note that the suit was kept for hearing on 30.01.2003, therefore, in respect of all the three sets of Defendants, the said date was before the ninety days period had expired. Unfortunately, for the Petitioners, though the said date was very vital for them, the Advocate engaged by them did not remain present on the said date and, therefore, the Petitioners were marked ex-parte as also a no written statement Order came to be passed against them. Since an ex-parte Order came to be passed against them, the Petitioners could not file their Wakalatnama in the said suit and the Wakalatnama was filed by some of the Defendants only on 18.02.2003 along with the application filed for setting aside the Orders. The non-filing of the Wakalatnama by the Petitioners, therefore, can be attributed to the fact that they were marked ex-parte. It would also be pertinent to note that some of the Defendants were not even served which Defendants, have been referred to in the earlier part of this Order. The said Defendants, suo motu, filed their Wakalatnama on 20.02.2003 on acquiring knowledge of the above suit being filed against them. Therefore, one can see that there was confusion as regards the service of writ of summons on the Defendants. Something, therefore, can be said in favour of the Petitioners/Defendants as all of them were not served even when the said ex-parte Order came to be passed against them on 30.01.2003. The conduct of the Petitioners, in my view, is not as callous or negligent or indolent as is sought to be contended by the learned Counsel for the Respondents. The Petitioners were handicapped by the fact that on the crucial day i.e. on 30.01.2003, they went unrepresented as their Lawyer did not remain present for the reasons mentioned earlier in this Order.

10. In so far as the provisions of Order 8, Rule 1 are concerned, it is well settled that the provisions have been held to be directory and not mandatory. The Apex Court has held that the said Rule being a Rule of procedure, cannot be construed strictly as procedure is the handmaiden of justice and the interpretation has to be one which furthers the cause of justice. The Division Bench of this Court in the Judgment of Chintaman Sukhdeo Kaklij Vs. Shivaji Bhausaheb Gadhe & Ors., (supra), has gone on to hold that this Court is not powerless in extending the time for filing the written statement if exceptional circumstances so warrant. In the instant case, the conspectus of facts as disclosed above namely that the Petitioners' Advocate had remained absent on 30.01.2003 on account of which, the Petitioners were marked ex-parte. Secondly, that some of the Defendants who are the Petitioners above named were not served till even the said date i.e. 30.01.2003. In my view, the facts and circumstances of the present case warrants that this Court, in the interest of justice, should extend the time for filing the written statement.

11. Another aspect that cannot be lost sight of is the fact that the Trial Court has deemed it fit to accept the reasons mentioned by the Petitioners in their application for setting aside the ex-parte Order but has not found it fit for the reasons mentioned by the Petitioners in their application for allowing the Petitioners to file their written statement, by relying upon the provisions of Order 8, Rule 1 of Civil Procedure Code, in my view, in the teeth of the Judgment of the Apex Court in Salem Advocate Bar Association, T.N. Vs. Union of India, [2005(5) ALL MR 876 (S.C.)] (supra) as well the Judgment of the Division Bench of this Court in the matter of Chintaman Sukhdeo Kaklij Vs. Shivaji Bhausaheb Gadhe & Ors., (supra), the approach of the Trial Court is a highly technical one.

12. In that view of the matter, the impugned Order dated 01.07.2003 is set aside to the extent, it disallows the application of the Petitioners seeking permission to file their written statement. The Petitioners are accordingly allowed to file their written statement.

13. The Petition is, therefore, allowed in terms of prayer clause (a). The Petitioners to pay costs of Rs.5,000/- each to the Respondent Nos.1 and 2, within a period of two weeks from date. The parties to appear before the Trial Court on 14.12.2009 at 10.00 a.m. Learned Counsel, Shri. Pangam, states that the Petitioners would file their written statement on the said date. The Trial Court to accept the said written statement and fix a schedule for hearing of the suit as per its convenience.

Petition allowed.