Mohammed Yusuf Vs.
Faij Mohammad & Ors. [2008] INSC 2059 (2 December 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7209 OF 2008 (Arising
out of S.L.P. (C) No.3311/2008) Mohammed Yusuf ...Appellant Versus Faij
Mohammad & Ors. ...Respondents O R D E R Leave granted.
1.
This
appeal is directed against a judgment and order dated 20.9.1997 passed by a
learned Single Judge of the High Court of Judicature at Allahabad allowing the
writ petition filed by the respondents herein questioning the validity of an
order dated 29.8.2007 passed by the learned Additional District Judge, Mathura
in Civil Revision No. 322/2005 affirming the order dated 24.10.2005 passed by
the learned Civil Judge whereby and whereunder while rejecting the application
filed by the appellant herein under Order 8 Rule 10 of the Code of Civil
Procedure, a date was fixed for recording the evidence of the plaintiffs and
the application filed by the respondents herein praying for condoning the delay
in filing the written statement was rejected.
2.
The
basic fact of the matter is not in dispute.
3.
Appellant
herein filed a suit for a decree for permanent injunction in the year 2002. A
separate application -1- for grant of temporary injunction was also filed. Summons
upon the defendants wereserved on 6.7.2002. The defendants appeared through
their learned advocate on 19.7.2002.
4.
Appellant
filed an application for grant of temporary injunction which was rejected on
28.1.2004. An appeal was preferred thereagainst which was disposed of by an
order dated 14.5.2004. It is neither in doubt nor in dispute that the
defendants- respondents filed applications for extension of time for filing
written statement number of times. The matter was also adjourned on one ground
or the other.
5.
On
or about 31.1.2005, the appellant also filed an application before the learned
trial Judge for pronouncing judgment in terms of Order 8 Rule 10 of the Code of
Civil Procedure, inter alia, on the premise that the defendants-respondents did
not file any written statement. It is on the same date the defendants filed an
application for filing written statement. No application for condonation of
delay in filing the written statement was, however, filed.
6.
However,
on 23.9.2005, as indicated hereinbefore by reason of an order dated 24.10.2005,
while rejecting the said application of the respondent, the trial Judge allowed
the plaintiff to examine his own witnesses in support of his case.
7.
A
Revision Petition was filed by the respondents which by reason of an order
dated 29.8.2007 was dismissed by the learned District Judge.
8.
Being
aggrieved by and dissatisfied with the said order, the respondents filed a Writ
Petition which was marked as CMWP No. 45197/2007 before the High Court. By
reason of the impugned judgment, the High Court has allowed the said Writ
Petition, directing:
" Considering
the facts and circumstances of the case, this Court is of the opinion that the
petitioner should be permitted to contest the suit on merit.
In view of the
aforesaid, the order of the trial court refusing to keep the written statement
on record is set aside. The written statement shall be kept on the record and
the defendant-petitioner shall be permitted to contest the matter on merit
subject to payment of cost of Rs.10,000/-, which shall be deposited by the
defendant- petitioner in favour of the plaintiff by means of a bank draft
within two weeks. The amount so deposited can be withdrawn by the plaintiff.
The writ petition is allowed."
9.
Mr.
R.S. Hegde, learned counsel appearing on behalf of the appellant would submit
that keeping in view the fact that the summons upon the defendants were served
on 6.7.2002 and no step having been taken to file written statement for a
period of three years and only on 31.5.2005, an application for filing written
statement having been filed, the High Court committed a serious error in
passing the impugned judgment.
10.
Learned
counsel appearing on behalf of the respondents, on the other hand, would
contend that from a -3- perusal of the order-sheet before the trial Court, it
would appear that dates after dates were fixed for filing written statement
and, furthermore, having regard to the fact that the appellant himself
preferred an appeal before the learned District Judge against an order rejecting
his application for grant of temporary injunction, the written statement could
not be filed.
11.
It
is urged that the provisions of Order 8 Rule 1 of the Code of Civil Nanhku and
Ors. - (2005) 4 SCC 480, this Court may not exercise its discretionary jurisdiction
under Article 136 of the Constitution of India.
12.
Order
8 Rule 1 of the Code of Civil Procedure reads thus:
" [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.]
13.
Although
in view of the terminologies used therein the period of 90 days prescribed for
filing written statement appears to be a mandatory provision, this Court in
Kailash(supra) upon taking into consideration the fact that in a given case the
defendants may face extreme hardship in -4- not being able to defend the suit
only because he had not filed written statement within a period of 90 days,
opined that the said provision was directory in nature.
However, while so
holding this Court in no uncertain terms stated that defendants may be
permitted to file written statement after expiry of period of 90 days only on
exceptional situation. The question came up for consideration before this Court
in M. 2007 (5) SCALE 171, wherein a Division Bench of this Court upon noticing
Kailash (supra) held as under:
" 7. Since
neither the trial Court nor the High Court have indicated any reason to justify
the acceptance of the written statement after the expiry of time fixed, we set
aside the orders of the trial Court and that of the High Court. The matter is
remitted to the trial Court to consider the matter afresh in the light of what
has been stated in Kailash's case(supra). The appeal is allowed to the
aforesaid extent with no order as to costs."
14.
The
matter was yet again considered by a three-judge Bench of this Court
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
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 -5-
take out the rigour of that provision or to mitigate genuine hardship. It was
in that 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
time-limit 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 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?"
16.
In
view of the authoritative pronouncements of this Court, we are of the opinion
that the High Court should not have allowed the writ petition filed by the
respondent, particularly, when both the learned trial judge as also the
Revisional Court had assigned sufficient and cogent reasons in support of their
orders.
17.
As
indicated hereinbefore, the High Court allowed the writ petition and thereby
set aside the orders passed by the -6- trial Court as also the Revisional
Court without assigning any reason therefor. The jurisdiction of the High Court
under Article 226 and 227 of the Constitution of India is limited. It could
have set aside the orders passed by the learned trial Court and the Revisional
Court only on limited ground, namely, illegality, irrationality and procedural
impropriety. The High Court did not arrive at a finding that there had been a
substantial failure of justice or the orders passed by the trial Court as also
by the Revisional Court contained error apparent on the face of the record
warranting interference by a superior Court in exercise of its supervisory
jurisdiction under Article 227 of the Constitution of India.
18.
For
the reasons stated above, the impugned judgment of the High Court cannot be
sustained. It is set aside accordingly. The appeal is allowed. In the facts and
circumstances of this case, there shall be no order as to costs.
19.
In
this view of the matter the respondents would be entitled to withdraw the sum
of Rs.10,000/- deposited by them as costs.
......................J.
[S.B. SINHA]
.....................J
[ CYRIAC JOSEPH ]
New
Delhi,
December
2, 2008.
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