Writ Petition No.483 of 2011

11th October, 2011

Petitioner Counsel: Shri A. KAMAT
Respondent Counsel: Shri R. MENEZES

Cases Cited:
Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, 2005(5) ALL MR 876 (S.C.)=AIR 2005 SC 3353 [Para 5]
M/s R. N. Jadi and Brothers and Ors. Vs. Subhashchandra, 2007 ALL SCR 1981=AIR 2007 SC 2571 [Para 6]
Zolba Vs. Keshao & Ors., 2008 ALL SCR 1351=2008 (11) SCC 769 [Para 6]
Shaikh Salim Haji Abdul Khayumsab Vs. Kumar & Ors., 2006(1) ALL MR 132 (S.C.)=2006 (1) Bom.C.R. (SC) 57 [Para 8]
Vasanth Satyanarayana Hegde Vs. The Managing Director, Karnataka Neeravari Nigama Ltd. & Anr., AIR 2006 Karnataka 37 [Para 9]

JUDGMENT

JUDGMENT :- Heard Shri A. Kamat, learned Additional Government Advocate for the Petitioners and Shri R. Menezes, learned Counsel appearing for the respondents.

2. Rule. Heard forthwith with the consent of the learned Counsel. The learned Counsel for respondents waives service.

3. The petitioners have impugned the order dated 4/06/2011 passed by the learned Principal District Judge, North Goa, Panaji in Civil Suit No.51/2010 whereby the written statement filed by the petitioners in the suit filed by the respondents was not allowed to be considered on the ground that the said written statement was not filed within the time prescribed under the provisions of Order VIII Rule 1 of the Civil Procedure Code.

4. Shri Kamat, the learned Additional Government Advocate appearing for the petitioners has assailed the impugned order on the ground that the written statement was filed belatedly in view of the fact that requisite sanctions had to be obtained from the concerned Department for the purpose of appointing an advocate to represent the State Government and thereafter there was further delay on account of the fact that the concerned Department was engaged with some other administrative activities which prevented them from giving the necessary instructions to the concerned advocate to file the written statement. The learned Counsel further pointed out that an application was filed by the petitioners on 25/01/2011 seeking time to file the written statement and the learned Judge granted the said application subject to payment of costs of Rs.500/- and fixed the matter to file the written statement on 15/02/2011. In the meanwhile, an application was also filed by the respondents at Exhibit 11 not to take the written statement on record. On 15/02/2011 none appeared for the petitioners and the matter was posted as last opportunity to 8/03/2011 for filing the reply to the said Exhibit 11. Immediately thereafter the learned Counsel pointed out that on the next date of hearing i.e. on 8/03/2011 the written statement came to be filed by the petitioners along with the list of documents. The learned Counsel further pointed out that the petitioners have also filed an application for condonation of delay and by the impugned order the application for condonation of delay as well as the application filed by the respondents came to be disposed of by passing the impugned order. The learned Counsel further pointed out that the inaction on the part of the petitioners in not filing the written statement within the time prescribed cannot be said to be deliberate as considering the exigencies of the administration of the petitioners, specific formalities have to be complied with for the purpose of defending the proceedings in the Court of law which resulted in the delay in filing the written statement. Learned Counsel further submitted that considering the facts and circumstances of the case, the petitioners have made out a case for condoning the delay in filing the written statement and, as such, the impugned order deserves to be quashed and set aside.

5. On the other hand, Shri R. Menezes, learned Counsel appearing for the respondents has supported the impugned order. The learned Counsel has pointed out that there are no special reasons nor any legal grounds made out by the petitioners to condone the delay in filing the written statement within the time prescribed under Order VIII Rule 1 of the Civil Procedure Code. Learned Counsel further pointed out that the Apex Court has held that filing of such written statement within the period of 90 days is mandatory and there is no justification made out by the petitioners to file the written statement belatedly. In support of his submissions, the learned Counsel has relied upon the judgment of the Apex Court reported in AIR 2005 SC 3353 : [2005(5) ALL MR 876 (S.C.)] in the case of Salem Advocate Bar Association, Tamil Nadu V/s. Union of India. The learned Counsel further submitted that considering the ratio laid down by the Apex Court in the said judgment the question of condoning the delay in filing the written statement and/or taking the written statement into consideration would not arise. The learned Counsel, as such, submitted that there is no case made out for any interference in the impugned order in exercise of power under Article 227 of the Constitution of India as the reasons given by the petitioners even in the affidavit before this Court are not adequate.

6. Having heard the learned Counsel and on perusal of the record, it would be appropriate to consider whether provisions of Order VIII Rule 1 of the Civil Procedure Code are mandatory and/ or directory. The Apex Court in the judgment reported in AIR 2007 SC 2571 : [2007 ALL SCR 1981] in the case of M/s R. N. Jadi and Brothers and Ors. V/s Subhashchandra, has held at paras 13 and 14 thus :

"13. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.

14. It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order VIII 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 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."

In 2008 (11) SCC 769 : [2008 ALL SCR 1351], in the case of Zolba V/s. Keshao & Ors. the Apex Court has held at paras 13 & 14 thus:

"13. Considering the facts and circumstances of the present case and the statements made in the application for condoning the delay in filing the written statement, we are not in a position to hold that the appellant was not entitled to file the written statement even after the expiry of the period mentioned in the proviso to Order 8 Rule 1 CPC. After reading the provisions, in particular the proviso to Order 8 Rule 1 CPC, we are unable to hold that the provisions under Order 8 Rule 1 are mandatory in nature.

14. In Salem Advocate Bar Assn. v. Union of India, it has been clearly held that the provisions including the proviso to Order 8 Rule 1 CPC are not mandatory but directory. It has been held in that decision that the delay can be condoned and the written statement can be accepted even after the expiry of 90 days from the date of service of summons in exceptionally hard cases. It has also been held in that decision that the use of the word "shall" in Order 8 Rule 1 CPC by itself is not conclusive to determine whether the provision is mandatory or directory. The use of the word "shall" is ordinarily indicative of mandatory nature of the provision but having regard to the decision in that case, the same can be construed as directory. In AIR para 21 of the said decision, this Court observed as follows: (SCC p. 364, para 20)

"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."

7. Taking note of the ratio laid down by the Apex Court in the judgment referred to herein above, it cannot be accepted that the provisions of Order VIII Rule 1 proviso C.P.C. stipulating the period of 90 days in filing of the written statement can be considered to be mandatory.

8. In the present case, there is no dispute that the learned Judge fixed the matter on 15/02/2011 for filing the written statement after the period of 90 days had elapsed The Apex Court in another judgment reported in 2006 (1) Bom.C.R. (SC) 57 : [2006(1) ALL MR 132 (S.C.)] in the case of Shaikh Salim Haji Abdul Khayumsab V/s. Kumar & Ors. has held at paras 10,11,12 & 19 thus:

10. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.

11. The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer.

12. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable - Justice is the goal of jurisprudence - processual, as much as substantive.

19. The matter can be looked at another angle. Undisputedly the trial court had granted time up to 19/2/2004 which undisputedly fell beyond the 90 days' period. Since the 19/02/2004 happened to be a holiday, the Written statement was filed on the next day. Had the Written Statement been filed on 19/02/2004, obviously the court could not have refused to accept the written statement as it was within the time granted by it. Merely because of a fortuitous circumstance the written statement came to be filed next day i.e. on account of the date fixed being a holiday that cannot make the Written Statement, filed, unacceptable.

9. In the present case, on the basis of the record, it is evident that the Court had fixed the date for filing of the written statement on 15/02/2011 after the period of 90 days had elapsed. In case the written statement was filed on the said date the same had to be accepted. The matter was thereafter posted on 8/03/2011 when admittedly the written statement was filed by the petitioners. By an order dated 29/09/2011, this Court granted leave to the petitioners to file an affidavit to disclose the reasons for the delay for taking necessary steps in filing the written statement. Accordingly, an additional affidavit has been filed giving the details of the movement of the file to different concerned Departments for the purpose of obtaining necessary sanctions to appoint the advocate as well as taking steps for the purpose of filing the written statement. Though the learned Counsel appearing for the petitioners has objected in considering the averments made in the said affidavit, in view of the fact that this Court had granted such leave, keeping the objections of the respondents open, I find that the said affidavit can be taken into consideration, considering the facts and circumstances of the case. Apart from that the Karnataka High Court in the judgment reported in AIR 2006 Karnataka 37 in the case of Vasanth Satyanarayana Hegde V/s. The Managing Director, Karnataka Neeravari Nigama Ltd. & Anr. has held that such explanation can also be filed before the High Court. The averments made in the said affidavit are merely clarifications amplifying the original ground in the application filed before the learned District Judge. In any event, considering the facts and circumstances of the case, I find that the respondents have not attributed any malafides to the petitioners of deliberately delayed in filing the written statement. There is nothing on record to suggest that the petitioners have deliberately delayed in filing of the written statement. The records reveal that as the petitioners required requisite sanction from the concerned Department for taking steps to take the defence in the suit the explanation given by the petitioners is plausible, in the circumstances of the case. It is also to be noted that there is nothing on record to show any gross negligence on the part of the petitioners. In case the suit proceeds without being contested even public money can be affected considering the nature of the suit. In such circumstances, I find that the petitioners are entitled to get the delay condoned in filing the written statement and such written statement is to be taken on record. The learned Judge was not justified to refuse to condone the delay to file the written statement. Considering the said judgment of the Apex Court, the petitioners have made out a case to condone th delay in filing the written statement.

10. In view of the above, I pass the following order;

ORDER

(i) The impugned order dated 4/06/2011 is quashed and set aside.

(ii) The application to take the written statement on record is allowed and the written statement filed by the petitioners is ordered to be taken on record subject to the petitioners paying costs of Rs.5,000/- as condition precedent to the respondents within a period of 15 days.

(iii) Rule in the above terms.

(iv) Petition stands disposed of accordingly with no order as to costs.

Ordered accordingly.