M.R. Verma, J.@mdashThis application under Sections 148 and 151 of the CPC (hereafter referred to as ''the Code'') has been filed by the applicants/Defendants hereafter referred to as ''the Defendants'') for extension of time to file written statement.
2. Brief facts leading to the filing of this application are that the non-applicant/Plaintiff (hereafter referred to as ''the Plaintiff'') has instituted a suit against the Defendants for recovery of Rs. 30,11,856/- on account of price of IMFL etc. supplied by it to the Defendants. The Defendants despite service did not file written statement within the prescribed period, therefore, moved the present application for extension of time for filing the written statement. It is averred that at the time of service of summons this Court was closed for winter vacation and the date for appearance was fixed for 20.3.2003. Due to some mistake in the number of the suit, the Defendants could not put in appearance and were proceeded against ex parte and such ex parte order was set aside on 4.4.2003 and the case was listed for filing the written statement. Thus, taking into account the fact that at the time of service of the Defendants the High Court was closed for winter vacation and subsequent non-appearance because of mention of wrong suit-number in the Cause List and the time taken in setting aside the ex parte order dated 20.3.2003, the written statement now filed along with the application within the statutory period of 90 days after deducting the aforesaid time, be taken on record by extending time for filing the written statement.
3. The application has been resisted by the Plaintiff on the ground that the written statement has not been filed within the prescribed period despite time and opportunity, therefore, neither the statutory period can be extended nor written statement filed by the Defendants can be taken on record.
4. I have heard the learned Counsel for the parties and have also perused the records.
5. The Defendants were admittedly served with the summons on 28.1.2003 and they admittedly did not file the written statement within 30 days of the date of service of summons i.e. till 27.2.2003 nor applied for allowing them to file the written statement within the next 60 days. No doubt, on and after 28.1.2003, the Court was closed for Winter Vacation but it was not so closed from 24th to 27th of February, 2003. The Defendants not only failed to file the written statement within 30 days of the service of summons but also failed within that period to file any application for extension of time to file the written statement within the further period of 60 days which was to expire on 27.4.2003. The Defendants admittedly were ordered to be proceeded against ex-parte on 20.3.2003 which order was set aside on 4.4.2003 whereas the time of 90 days from service of summons on them was to expire on 27.4.2003. The Defendants again failed to file the written statement or application for extension of time till 27.4.2003. Thus, having ample time and opportunity, the Defendants neither filed the written statement within the initial period of 30 days nor applied for extension of time to file the written statement within the further period of 60 days or even after expiry of total permissible period of 90 days till 21.5.2003 when the present application was filed.
6. It may be pointed out at the very outset that insofar as the present application purports to be u/s 148 of the Code, it is misconceived. Section 148 of the Code reads as under:
148. Enlargement of time. - Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, [not exceeding thirty days in total,] even though the period originally fixed or granted may have expired.
7. On a bare reading of the above provisions, it is clear that Section 148 of the Code empowers the Court to extend the period fixed by it even after the expiry of the period originally fixed. However, under these provisions the Court has no power to extend a period fixed by statute and not fixed or granted by the Court. Therefore, the provisions of Section 148 of the Code are of no help to the Defendants and the relief prayed for cannot be granted to them under the provisions of Section 148 of the Code.
8. It was contended by the learned Counsel for the Defendants that even if the Court has no power to extend time for filing written statement under the provisions of Section 148 of the Code, the Court has the inherent powers u/s 151 of the Code to extend such time. It was also contended that the rules of procedure which are meant for doing substantial justice to the parties, should be interpreted in an enabling manner, therefore, in the given circumstances of the case, the time for filing the written statement by the Defendants deserves to be extended. To substantiate the contention, the learned Counsel for the Defendants relied on
9. After coming into force of the CPC (Amendment) Act, 2002, filing of the written statement by a Defendant will be governed by the provisions of Rule 1(1) of Order-5 and Rule-1 of Order-8 of the Code.
10. Sub-rule (1) of Rule-1 of Order-5 of the Code reads as under:
(1) When a suit has been duly instituted, a summons may be issued to the Defendant to appear and answer the claim and to file the written statement of his defence, if any within thirty days from the date of service of summons on that Defendant:
Provided that no such summons shall be issued when a Defendant has appeared at the presentation of plaint and admitted the Plaintiff''s claim:
Provided further that where the Defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.
11. Rule-1 of Order-8 of the Code reads as under:
1. Written Statement. - The Defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:
Provided that where the Defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.
12. It is evident on a bare reading of the aforesaid provisions that a Defendant now has to file the written statement within 30 days from the date of service of summons. In case the Defendant is not in a position to file the written statement within the said period of 30 days the Court is given the maximum discretion to allow the Defendant to file the written statement within 90 days from the date of service of summons. However, for allowing the Defendant to file the written statement after expiry of the initial period of 30 days within the next 60 days of the service of summons, the Court has to record the reasons in writing for allowing the Defendant to file the written statement in the extended period. Evidently, these provisions have been made for expeditious progress of the suit and, thus, are salutary and mandatory. The question, therefore, arises whether a Court in exercise of its inherent powers u/s 151 of the Code can extend the maximum period of 90 days prescribed for filing of the written statement, by the Defendant. It may be pointed out here that inherent powers of the Court cannot be exercised where there is an express provision of law applicable to the case. Therefore, the inherent powers of the Court cannot be invoked to circumvent the provisions of Rule-1 of Order-5 and Rule-1 of Order-8 of the Code. The inherent powers are intended for exceptional cases and are not intended to enable the Courts to ignore the provisions of law which govern procedure nor can the inherent powers of the Court be used nor relieve a party from the consequences of his own mistake or to enable him to evade the law specifically providing time for doing certain acts in furtherance of its case within the prescribed time.
13. The inherent powers of the Court cannot be exercised where there is an express provision of law applicable to the case. The inherent powers are intended for exceptional cases and are not intended to enable the Courts to ignore the provisions of law which govern procedure nor can the inherent powers of the Court be used to relieve a party from the consequences of his own mistake or to enable him to evade the law specifically providing time for doing certain acts in furtherance of its case. Therefore, the inherent powers of the Court cannot be invoked to circumvent the provisions of Rule-1 of Order-5 and Rule-1 of Order-8 of the Code.
14. In Mehar Chand''s case (supra), the Punjab and Haryana High Court, while dealing with the provisions of Rule-1 Order-8 of the Code as immediately before the coming into force of the amending Act, held that this Rule gives right to the Defendant to file written statement at his option at or before the first hearing of the suit and even afterwards within such time as the Court may permit. If the Defendant has for any reason omitted to avail of his right at or before the first hearing the Court has a discretion to permit him to do so and the time for this purpose can be extended in the exercise of the discretion of the Court if the circumstances so warrant. It is further held that the Rule has to be worked in a manner so as to advance justice and was not intended to be so operated as to punish the defaulting Defendant for his omission.
15. Be it stated that before the aforesaid amendment, Rule-1 did not specify any time for filing the written statement nor the time which could be extended by the Court for filing the written statement was specified in the Rule. It was left to the absolute judicial discretion of the Court to grant such time as was warranted by the facts and circumstances of the case. However, after the aforesaid amendments the Legislature having provided time frame for filing the written statement by the Defendant, the law as laid down in Mehar Chand''s case has been rendered redundant.
16. In Sangram Singh''s case (supra), the apex Court while dealing with the interpretation of procedural statutes, particularly the Code of Civil Procedure, held that procedural law is designed to facilitate justice and further its ends and is not a penal enactment for punishment and penalties. Therefore, too technical a construction of Sections that leaves no room for reasonable elasticity of interpretation should be guarded against provided always that justice is done to both sides lest the very means designed for the furtherance of justice be used to frustrate it. It was further held that our laws of procedure are grounded on a principle of natural justice which required that none should be condemned unheard, that decision should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But, taken by and large, our laws of procedure should be construed wherever that is reasonably possible in the light of the said principle.
17. There cannot be any dispute with the proposition that the procedural laws must ordinarily be interpreted in an enabling manner. However, as and when the procedural law is clearly and unambiguously defined and afford reasonable opportunity to a party to do a certain thing within the specified period, such provisions are to be given effect to otherwise the very purpose of such provisions evidently meant for quick delivery of justice will be frustrated. The provisions now providing the time frame for filing the written statement are clearly defined and must be given effect to even accordingly to the ratio in Sangram Singh''s case.
18. In Inder Singh''s case (supra), this Court while dealing with the provisions of Order 16 Rule-1 and Order 17 Rule 1(i) read with Section 151 of the Code, held that the rules of procedure are meant to advance the cause of justice, therefore, must be applied in an enabling manner when so required in the interest of justice and permitted the party to file list of witnesses after expiry of 15 days period as provided under Sub-rule (i) of Rule-1 of Order-16 of the Code in exercise of its inherent powers in view of the decision of the Hon''ble Supreme Court in Chuhi Ram and Ors. v. Ram Kumar and Ors. Civil Appeal No. 6679 of 1999, decided on 21.11.2002 and the fact that the party was found to have been prevented by sufficient cause to file the list of witnesses within the stipulated period. The ratio in the case is, therefore, of no help to the Defendants.
19. In view of the legal position as discussed herein above, the Defendants cannot be granted extension of time to file the written statement beyond the statutory period prescribed by the Legislature under Rule-1 of Order V and Rule-1 of Order VIII of the Code for filing the written statement.
20. As a result, this application merits dismissal and is accordingly dismissed.
