Writ Petition No.4400 of 2012

27th June, 2013.

Petitioner Counsel: Shri AMIT KHARE
Respondent Counsel: Shri FIRDOS T. MIRZA, Shri S.M. BHAGDE

Cases Cited:
M/s. R. N. Jadi and Brothers & Ors. Vs. Subhashchandra, 2007 ALL SCR 1981=AIR 2007 SC 2571 [Para 4,6]
Kailash Vs. Nanhku and Ors., 2005(5) ALL MR 689 (S.C.)=2005(4) SCC 480 : AIR 2005 SC 2441 [Para 4,5]
M/s. Aditya Hotels (P) Ltd. Vs. Bombay Swadeshi Stores Ltd.& Ors., 2007(3) ALL MR 324 (S.C.)=AIR 2007 SC 1574 [Para 5]

JUDGMENT

JUDGMENT :- 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 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 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 : [2007 ALL SCR 1981]. It was held in view of a decision of the Apex Court in Kailash v. Nanhku and Ors. (2005 (4) SCC 480) : [2005(5) ALL MR 689 (S.C.)] 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 : [2005(5) ALL MR 689 (S.C.)] and M/s. Aditya Hotels (P) Ltd. v. Bombay Swadeshi Stores Ltd.& Ors., reported in AIR 2007 SC 1574 : [2007(3) ALL MR 324 (S.C.)]. The Hon'ble Supreme Court of India in the ruling of Kailash v. Nanhku and others, [2005(5) ALL MR 689 (S.C.)] 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, [2007 ALL SCR 1981] 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 considered 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.

Ordered accordingly.