REPORTABLE

               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

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for grant of temporary injunction was also filed. Summons upon the defendants were

served  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.

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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

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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

Procedure having been held to be directory in nature by this Court in  Kailash Vs.

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

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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.

Srinivasa Prasad & Ors. Vs. The Comptroller & Auditor General of India & Ors. -

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

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

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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 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 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?"

15. 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.

16. As indicated hereinbefore, the High Court allowed the writ petition and

thereby set aside the orders passed by the

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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.

17. 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.

18. 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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