HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

S.B. Civil Writ Petition No. 3695 / 2012

Shri Ramashankar S/o late Shri Ramswaroop Grand son of Shri Badri Narayan, by caste Mahajan Khandelwal, aged 57 years, resident of Plot No.B-21, Chandpol, Anaz Mandi, Jaipur

----Petitioner

Versus

1. Hon'ble Additional District Judge No.9, Jaipur Metropolitan, Jaipur (Raj.)

2. Shri Umashankar S/o late Shri Ramswaroop, by caste Mahajan Khandelwal, aged 55 years, resident of Plot No.B-21, Chandpol, Anaz Mandi, Jaipur

3. Shri Ramavtar @ Jagdish S/o late Shri Ramswaroop, by caste Mahajan Khandelwal, aged 53 years, resident of Plot No.C-28, Ambabari, Jaipur & Flat No.202, Second Floor, Dhanuka Apartment, Dher Ka Balaji Mandir Ke Paas, Jaipur.

4. Murli Manohar @ Lala S/o Shri late Ramswaroop, by caste Mahajan Khandelwal, aged 50 years, resident of Plot No.B-21, Chandpol, Anaz Mandi, Jaipur & 1/441 Vidhyadhar Nagar, Jaipur.

5. Smt. Shanti Devi wife of late Shri Ramswaroop by caste Mahajan Khandelwal, aged 75 years, resident of Plot No.B-21, Chandpol, Anaz Mandi, Jaipur.

_____________________________________________________

----Respondents

	Y JI VA WINA IZ
For Petitioner(s)	: Mr. Z.A. Naqvi, Sr. Adv. with
	Mr. Sehban Naqvi, Adv.
For Respondent(s) :	For Respondent(s) : Mr. Rajesh Kumar Purohit, Adv.
	Mr. Nirmal Kumar Goyal, Adv.
	Mr. Shankarlal Verma, Adv.
	Mr. Shankarlal Verma, Adv.

HON'BLE MR. JUSTICE DINESH CHANDRA SOMANI Order

_____________________________________________________

21/11/2017

The instant petition under Article 227 of the Constitution of India has been filed by the plaintiff/petitioner assailing the order dated 27.02.2012 passed by learned Additional District Judge No.9, Jaipur Metropolitan, Jaipur (hereinafter referred as "the learned trial Court"), whereby the learned trial Court allowed the application dated 26.09.2011 filed by the defendant No.2 & 4 under Section 151 of CPC and the application dated 12.10.2011 filed by the defendant No.3 under Order 8 Rule 1 read with Section 148 of CPC on cost of Rs.1,000/- each.

The skeletal material facts necessary for disposal of this petition are that the plaintiff/petitioner filed a suit for partition of joint family properties. A separate application for grant of temporary injunction was also filed. The defendants were served with the summons on 26.05.2011. The next date in the civil suit was 27.05.2011. On 27.05.2011, the defendant No.1 did not appear despite service thus ex parte proceedings were drawn against him and defendant No.2 to 4 sought adjournment to file written statement. On next date 15.07.2011, the defendant No.2 to 4 again sought adjournment to file written statement. On next date 19.08.2011, right of the defendant No. 2 to 4 to file written statement and reply to the T.I. Application was closed because they did not file written statement and reply. Thereafter on 26.09.2011, defendant No.2 & 4 filed an application under Section 151 of CPC along with written statement. The defendant No.3 also filed an application on 12.10.2011 under Order 8 Rule 1 read with Section 148 of CPC along with written statement. The plaintiff/petitioner filed reply to both the applications and contested the same.

After hearing the parties, learned trial Court allowed both the applications on cost of Rs.1,000/- each vide impugned order dated

(2 of 9)

27.02.2012 and the written statements and reply to the T.I. application were taken on record.

Being aggrieved and dissatisfied with the impugned order passed by learned trial Court, the plaintiff/petitioner has approached this Court by way of this petition.

Learned senior counsel for the petitioner fairly concedes that the provisions of Order 8 Rule 1 and 10 of CPC are directory, even then the written statement submitted beyond the period of 90 days, can be taken on record only on showing adequate reasons for not filing the same within the time prescribed in law and this power should be exercised by the Courts in rare and exceptional cases only. In support of his contention, learned senior counsel placed reliance on Mohammed Yusuf versus Faij Mohammad & Ors. reported in 2008 DNJ (SC) 1084.

Per contra, learned counsel for the defendant/respondents opposed the submissions of learned senior counsel for the petitioner and supported the impugned order. Learned counsel submit that provisions of order 8 Rule 1 of CPC are directory in nature and the provision does not specifically take away power of the Court to take written statement on record filed after 90 days. Learned counsel also submit that the defendants have satisfactorily explained the delay caused in filing the written statements. Learned counsel further submit that even if the learned trial Court mistakenly granted time and taken the written statements on record filed after 90 days, it cannot be said that the plaintiff has suffered because he has been compensated with cost also. In support of their contention, learned counsel for the

respondents placed reliance on 2006 (1) SCC 46 Shaikh Salim Haji Abdul Khayumsab versus Kumar & Ors.

While deciding the applications filed by the defendants No.2 to 4, learned trial Court in the impugned order, has noted that :-

"जहॉ तक मौजूदा आवेदनों का प्रश्न है. निर्विवादित रूप से तीनों प्रतिवादीगण पर वाद के सम्मन व अस्थाई निषेधाज्ञा आवेदन के नोटिस की तामील दिनांक 26.5.11 को हो गई थी और उनके द्वारा 30 दिन में वादोत्तर एवं अस्थाई निषेधाज्ञा आवेदन का जवाब प्रस्तुत नहीं करने पर उनकी जवाबदेही दिनांक 19.8.11 को बन्द की गई है, तत्पश्चात उपरोक्त आवेदन पेश किये गये हैं। यह उल्लेखनीय है कि वादी तथा प्रतिवादी सं.1 से 3 आपस में सगे भाई हैं और प्रतिवादी संख्या 4 इन पक्षकारान की माता है. जिसकी उम्र स्वयं वादी ने वाद एवं अस्थाई निषेधाज्ञा आवेदन के शीर्षक में 75 वर्ष अंकित की है। प्रतिवादी संख्या 2 व 4 ने अपने पूर्व अधिवक्ता के विश्वविद्यालय चुनाव में व्यस्त होने के आधार पर वादोत्तर व जवाब आवेदन अस्थाई निषेधाज्ञा समय पर पेश नहीं करना एवं बाद में प्रतिवादी संख्या 2 व 4 की बीमारी का आधार हस्तगत आवेदन में लिया है। जबकि प्रतिवादी संख्या 3 ने अपने उक्त पूर्व अधिवक्ता द्वारा वादोत्तर बन्द हो जाने का तथ्य नहीं बताने का उल्लेख किया है। यह सही है कि विधि के प्रावधानों की जानकारी न होना बचाव नहीं हो सकता है, लेकिन साथ साथ यह भी उल्लेखनीय है कि प्रश्नगत मामला किसी आपराधिक विधि का नहीं होकर अचल संपति में अधिकारों से सम्बन्धित है। पक्षकारान द्वारा अपने

पूर्व अधिवक्ता के विरूद्ध अधिवक्ता अधिनियम के तहत उचित फोरम पर शिकायत न करना, आदेश दिनांक 19.8.11 के विरूद्ध कोई रिट पेश नहीं करने मात्र से उनके हस्तगत आवेदन पोषनीय न होना, नहीं माना जा सकता है, विशेषकर उस परिस्थिति में, जब कि प्रतिवादीगण की ओर से उदृरित उक्त 2008 डी एन जे (एस सी) 1084 के मामले में माननीय उच्चतम न्यायालय ने आदेश 8 नियम 1 व्य.प्र.सं. के प्रावधनों को निर्देशात्मक माना है। किसी सामान्य पक्षकार से प्रक्रियात्मक विधि के हर प्रावधानों की जानकारी होने की अपेक्षा जब तक नहीं की जा सकती है, जब तक कि पूर्व में ऐसे पक्षकार द्वारा किसी कानूनी प्रक्रिया में भाग नहीं लिया गया हो। विधि का यह सुस्थापित सिद्धान्त है कि किसी अधिवक्ता की त्रुटि के लिये उसके पक्षकार को दण्डित नहीं किया जा सकता है। वादी की ओर से उद्ररित न्यायिक निर्णय तथ्यों की भिन्नता के कारण मौजूदा मामले में वादी की कोई सहायता नहीं कर सकते हैं, जब कि प्रतिवादीगण की ओर से उदृरित उपरोक्त न्यायिक निर्णयों के परिप्रेक्ष्य में हमारी राय में प्रतिवादीगण के उक्त आवेदन क्रमशः एक–एक हजार रूपये खर्चे पर स्वीकार किये जाने योग्य हैं।

अतः प्रतिवादीगण संख्या 2 व 4 व प्रतिवादी संख्या 3 के उक्त आवेदन क्रमशः एक—एक हजार रूपये खर्चे पर स्वीकार कर इन प्रतिवादीगण के वादोत्तर एवं जवाब अस्थाई निषेधाज्ञा आवेदन को अभिलेख पर लिये जाते हैं।"

In <u>Mohammed Yusuf versus Faij Mohammad & Ors.</u> (supra) Hon'ble Apex Court in para 14 of it's judgment observed and held as under :-

14. The matter was yet again considered by a threejudge Bench of this Court in R.N.Jadi & Brothers and Ors. Vs. Subhashchandra - (2007) 6 SCC 420. P.K. Balasubramanyan J., who was also a member in Kailash(supra) in his concurring judgment stated the law thus:

"14. It is true that procedure is the handmaid of justice. The court must always be anxious to do justice and to prevent victories by way of technical knockouts. But how far that concept can be stretched in the context of the amendments brought to the Code and in the light of the mischief that was sought to be averted is a question that has to be seriously considered. I am conscious that I was a party to the decision in Kailash Vs. Nanhku which held that the provision was directory and not mandatory. But there could be situations where even a procedural provisional could be construed as mandatory, no doubt retaining a power in the Court, in an appropriate case, to exercise a jurisdiction to take out the rigour of that provision or to mitigate genuine hardship. It was in that contest that in Kailash Vs. Nanhku it was stated that the extension of time beyond 90 days was not automatic and that the court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from the timelimit fixed by the Code and the power inhering in the court in terms of Section 148 of the Code. Kailash is no authority for receiving written statement, after the expiry of the period permitted by law, in a routine manner.

15. 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 lament of Lord Denning in Allen Vs. Sir Alfred McAlpine & Sons that law's delay have been intolerable and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times?"

In Shaikh Salim Haji Abdul Khayumsab versus Kumar

& Ors. (supra) Hon'ble Apex Court in para 10, 11, 12, 13, 15 and

16 of it's judgment observed and held as under :-

10. Order 8, Rule 1 after the amendment casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. 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 provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Substituted Order VIII, Rule 1 intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried.

11. 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.

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

13. 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. (See Sushil Kumar Sen v. State of Bihar, (1975 (1) SCC 774).

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

15. 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.

Leaned senior counsel for the petitioner is unable to point out any illegality or impropriety in the impugned order passed by the learned trial Court. The impugned order cannot be said to be against the principles of natural justice. The impugned order is just, proper and equitable in the facts and circumstances of the case.

It is settled position of law that in exercise of it's power of superintendence under Article 227 of the Constitution, this Court cannot interfere with the orders of tribunals or courts subordinate to it, nor can it, in exercise of this power, act as a court of appeal over the orders of the tribunals or Courts subordinate to it.

The High Court can interfere in exercise of its power of superintendence, when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. In exercise of its power of superintendence, the Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. The power is discretionary and has to be exercised on equitable principle.

On consideration of submissions made on behalf of the learned counsel for the parties and having regard to the material made available on record and more particularly looking to the reasons recorded by the learned trial Court in support of the impugned order and the pleadings taken by the parties, I do not find any illegality or impropriety in the impugned order requiring interference by this Court under Article 227 of the Constitution of India.

Consequently, the writ petition being meritless, is dismissed.

In view of above, the stay application is also dismissed.

( DINESH CHANDRA SOMANI)J.