@JUDGMENTTAG-ORDER
T. Ch. Surya Rao, J.@mdashThis civil revision petition is directed against the order dated 25.3.2003 passed by the learned I Additional Senior Civil Judge, Warangal, in I.A. No. 797 of 2002 in O.S.No. 1118 of 2001.
2. The first defendant in the suit is the petitioner in I.A. No. 797 of 2002. He having been set ex parte on 11.9.2002 in the suit for his default in not filing the written statement within time filed the application under Order 8, Rule 10 read with Section 151 of the Code of Civil Procedure, 1908 (''the Code'' for brevity) seeking to set aside the ex parte order and to receive the written statement. The ground alleged inter alia in the affidavit filed in support of the said petition was that there had been a proposal for compromise in the suit and, therefore, he could not file the written statement within time.
3. The first respondent-plaintiff resisted that application on the premise that under the amended provisions of Order 8, Rule 1 of the Code, the written statement shall be filed within 30 days from the date of receipt of summons and that after expiry of 90 days therefrom, the Court would cease to have any jurisdiction to extend the time for filing the written statement.
4. Under the impugned order, the Court below allowed the petition on the condition of the petitioner paying costs of Rs. 100/-. The first respondent-plaintiff is now assailing the said order.
5. A short but significant point that might arise time and again for consideration by the Courts, as to whether a Court can extend time for filing a written statement, beyond the period of ninety days as enjoined under the proviso to Rule 1 of Order 8 of the Code for any good reasons to be recorded in writing, arises for adjudication in this case.
6. Having regard to the significance attached to the point it is appropriate at the threshold to consider Order 8, Rule 1 of the Code, the provision germane in the context for consideration. It 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."
7. From a perusal of the said provision it appears at the outset that the defendant who is obliged to file the written statement within thirty days from the date of service of summons shall be allowed to file the same beyond the period of thirty days by extending the time but such extension shall not be later than ninety days from the date of service of summons. The Court shall have to record its reasons in writing for extending the time. Discretion thus seems to have been conferred upon the Court by the Code to extend time for filing the written statement, of course, which discretion shall have to be exercised judiciously by recording the reasons in support thereof. However, the Court appears to have no such discretion to extend the time beyond the period of ninety days from the date of receipt of summons notwithstanding the compelling reasons if any in support thereof. It seems, therefore, that the defendant forfeits his right to file the written statement after expiry of the ninetieth day from the date of service of summons on him.
8. Rule 1 of Order 8 of the Code had been amended twice, initially under the CPC (Amendment) Act 46 of 1999 and later under the CPC (Amendment) Act 22 of 2002. Rule 8 as existed prior to the amendment under Act 46 of 1999 conferred jurisdiction upon the Court to extend time and it has not been hedged with any time limitation. Therefore, the Court could extend time, which in its view is reasonable. However, under the Amendment Act 46 of 1999, the provision was amended drastically mandating that the written statement shall be filed within thirty days from the date of service of summons on the defendant. No discretion seems to have been left with the Court to extend time from a perusal of the said provision. However, before coming into force, the said provision was amended under the Amendment Act 22 of 2002 by incorporating a proviso thereunder. Under the proviso a discretion has now been conferred upon the Court to extend time beyond the period of thirty days for the reasons to be recorded in writing but such extension shall not be later than ninety days from the date of service of summons.
9. It may be mentioned here that the amendments brought into the Code under the Amendment Acts 46 of 1999 and 22 of 2002 when challenged were upheld by the Apex Court, vide
10. Yet another provision need to be noticed in this context is Rule 10 of Order 8. It reads as under:
"10. Procedure when party fails to present written statement called for by Court:--Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up." [Emphasis is mine]
11. Rule 10 has been amended under the Amendment Act 104 of 1976 by adding the words "permitted or fixed by the Court." It may be mentioned here that Rule 10 was sought to be omitted from the statute under the Amendment Act 46 of 1999. However, under the Amendment Act 22 of 2002 it was allowed to be retained on the statute. A plain reading of the said provision shows that the Court shall pronounce the judgment when the defendant fails to file the written statement within the time permitted under the statute or fixed by the Court. It is obvious that although the time limit is prescribed under the statute the Court can fix the time beyond that prescribed limit. When once the Court fixes the time for filing the written statement it can also enlarge the same for reasons to be recorded.
12. Section 148 of the Code is germane here to consider since it enables the Court to enlarge the time when it has fixed or granted any time for doing any act prescribed or allowed by the Code. The provision 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."
13. A situation can be visualised here that if the defendant fails to file the written statement within thirty days from the date of service of summons, the Court can extend the time for reasons to be recorded in writing. While so extending the time, the Court may pass a conditional order directing the defendant to file the written statement on or before a particular date. However, under the amended provisions of Section 148, the Court can enlarge the time, time to time for a period not exceeding thirty days in total. If for any reason if the Court passes a conditional order fixing the time to file the written statement and that conditional order expires on 85th day from the date of service of summons, in ordinary course, that time can be enlarged u/s 148 of the Code for a total period not exceeding 30 days. If the provisions of Section 148 were to be invoked the ultimate period set forth in the proviso under Rule 1 of Order 8 of the Code would exceed. Therefore, the provisions of Section 148 and Rules 1 and 10 of Order 8 of the Code shall have to be considered together and in harmony.
14. Very recently, the Apex Court in
15. It has been sought to be contended that inasmuch as the expression used in the above provision is ''shall'', it is mandatory. The same expression ''shall'' has been used at three different places in the said provision. In the first instance, the written statement shall be filed within 30 days from the date of service of summons; in the second instance the Court can extend time for reasons to be recorded in writing and the defendant shall be allowed to file the same on such other day as may be specified by it; and in the last instance, such extension of time shall not be later than 90 days from the date of service of summons. The expression ''shall'' used in the said provision at three different places shall have to be construed as having the same meaning but not different meanings. In such case, the expression ''shall'' used in the first instance when it is not mandatory as the Court shall allow the written statement be filed on a future date, the said expression used in the later two stages in the self same provision shall have to be construed as in the case of the former expression. In other words, the expression ''shall'' used in three different places in Rule 1 of Order 8 carries the same meaning and when it cannot be construed as mandatory when used in the first instance, equally it cannot be so in respect of the later two occasions.
16. The object behind bringing in the said amendment by the Parliament was to have a speedy disposal of the cases within the fixed time frame and to expedite the disposal of civil suits and proceedings so that justice may not be delayed. With that view of the matter, under the Amendment Act 46 of 1999, the provision was amended mandating to file the written statement within thirty days from the date of service of summons without leaving any discretion to the Court to extend time. The Parliament seems to have realised the draconic nature of the said amendment which has left no discretion with the Court to extend time incorporated a proviso thereunder under the Amendment Act 22 of 2002. Now under the provision, discretion has been conferred upon the Court which discretion shall have to be exercised judiciously by recording the reasons in writing.
17. It is trite that procedure is handmade and is meant to facilitate rendering substantial justice to the parties. Certainly it cannot create hurdles so as to cripple the ends of justice. It is appropriate here to quote the observations of the Apex Court in
"But the law of procedure devised for advancing justice and not impeding the same...........a code of procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties: not a thing designed to trip people up."
Earlier in
"Now a code of procedure must be regarded as such. It is ''procedure'', something designed to facilitate the justice and further its ends; not a penal enactment for a punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore 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" (P.429)
The same view was reiterated by the Apex Court in
18. Having regard to the above discussion the Court has to, therefore, make every endeavour to balance the rigor of law and the substantive justice. In the process, attempt shall not be made to dilute the legislative mandate. In appropriate cases, more particularly in rare circumstances where the ends of justice requires further extension of time where the compliance of the procedure could not be made for the reasons beyond the control of the parties, it is permissible to extend further time. Such facility shall not be allowed to aim at to abuse it by adopting dilatory tactics. The Apex Court in Ramesh Chand Ardawatiya''s case (supra) held at the end of Para 26 thus.
"but needless to say such discretion shall be exercised in a reasonable manner keeping in view all the facts and circumstances of the case including the conduct of the defendant, and the fact whether a belated leave of the Court would cause prejudice to the plaintiff or take away a vested right which has accrued to the plaintiff by lapse of time".
19. Apropos the contention that time can be extended u/s 151 of the Code, the inherent jurisdiction of the Court u/s 151 of the Code applies only when there is no provision to meet a particular situation. It is now well settled that inherent powers of the Court u/s 151 of the Code cannot be invoked where there is an express provision for doing or omitting to do a particular act.
20. For the reasons hereinabove discussed, in my considered view, in appropriate cases the Court can extend time where the ends of justices require such extension. But at the same time it is to be remembered that when the defendant fails to file the written statement as directed by the Court, a vested right accrues to the plaintiff and any order to be passed subsequently for extension of time shall be passed keeping in view the facts and circumstances of the case, conduct of the defendant, and the prejudice that might be caused to the plaintiff in whose favour already a vested right accrued. Therefore any extension of time for filing the written statement shall be on reasonable grounds and in exceptional circumstances to render substantial justice to the parties.
21. A learned Single Judge of this Court in Civil Revision Petition No. 1917 of 2003 dated 17.4.2003 has also taken the same view that the Court has power to enlarge the time either u/s 148 or u/s 151 of the Code albeit for different reasons.
22. Turning to the facts of the case whether the fact situation would warrant the extention of time or not shall have to be seen. The ground mentioned inter alia in the affidavit filed in support of the petition was that both parties proposed to go in for compromise in the suit and in that view of the matter he could not file the written statement in time. The Court below having considered the facts and exercised its discretion in the interests of justice felt that it was just and necessary to permit the petitioner to file the written statement by condoning the delay. I see no compelling circumstances to interfere with the said discretion exercised by the Court below.
23. For the above reasons, the Civil Revision Petition fails and is dismissed. However, there shall be no order as to costs.
24. At this stage, it is represented by the learned Counsel for the revision petitioner that inasmuch as no stay has been granted by this Court during the pendency of the revision and pursuant to the impugned order passed by it, since the Court below has reviewed the written statement, the trial of the suit be expedited. In view of the same, the Court below shall make an endeavour to dispose of the suit as expeditiously as possible.
