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CASE NO.: Appeal (civil)  2360 of 2008

PETITIONER: Zolba

RESPONDENT: Keshao and Ors

DATE OF JUDGMENT: 01/04/2008

BENCH: TARUN CHATTERJEE & HARJIT SINGH BEDI

JUDGMENT: JUDGMENT O R D E R

REPORTABLE

CIVIL APPEAL NO 2360 OF 2008 (Arising out of SLP(C) No20062 of 2006

1.      Leave granted. 2.      In spite of due service, no one has entered  appearance on behalf of the respondents. Even at the  time of hearing of this appeal, the respondents had  failed to appear to contest the appeal. 3.      This appeal is directed against the judgment and  order dated 11th of October, 2006 passed by a learned  Judge of the High Court of Judicature at Bombay,  Nagpur Bench in Writ Petition No.4019 of 2006 by  which the learned Judge had dismissed the writ petition  filed by the appellant for condoning the delay of 35  days in filing the written statement in a suit for partition  and separate possession of agricultural land filed by the  respondents.  4.      We have heard the learned counsel appearing for  the appellant and also examined the impugned order of  the High Court as well as of the trial court and also the  application for acceptance of the written statement,  which was filed out of time.  5.      Having heard the learned counsel for the appellant  and after considering the materials on record, we are of  the view that in the facts and circumstances of the  present case, the High Court ought to have condoned  the delay in filing the written statement under Order 8  Rule 1 of the Code of Civil Procedure (in short "the  CPC"), even if some delay was caused in filing the  same. The appellant was the defendant in the suit for  partition and separate possession of agricultural land  falling under Gat No.243 admeasuring 0.50 H.R.  situated at Village Mouza \026 Kojai and house No.139  situated at Village Gaijapur, Maharashtra (herein after  referred to as the ’suit properties’). The  plaintiffs/respondent Nos. 1 to 5 have also sought for a  declaration to the effect that a Will dated 6th of June,  2003 executed in favour of the respondent No.6  (petitioner No. 2 in the High Court) was illegal, null  and void and also for permanent injunction restraining  the appellant from making any construction over the  open land falling in house No.139. A perusal of the  record would show that the respondents in the pending  suit moved an application for grant of temporary

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injunction against the appellant. By an order dated 29th  of April, 2005, the Civil Judge, Junior Division,  Nagbhid granted temporary injunction in favour of the  respondents. Feeling aggrieved, the appellant has  preferred a misc. civil appeal before the District Judge,  Chandrapur and the same is now pending decision. The  appellant under bonafide belief and on instruction of his  counsel in the trial court could not file the written  statement as he was advised by his counsel that the  written statement could be filed after the decision of the  appeal pending before the district court. However,  when advised by his counsel, the appellant filed an  application for accepting the written statement on  condonation of delay. The learned Civil Judge, Junior  Division, Nagbhid rejected the said application for  condoning the delay and refused to permit the appellant  to file the written statement in view of the proviso to  Order 8 Rule 1 of the CPC. A review petition was filed  which was also rejected by an one line order. It is  against this order a writ petition was moved before the  High Court, which was also dismissed. Before we look  into the provisions under Order 8 Rule 1 of the CPC,  we need to record that the learned counsel appearing for  the appellant contended before us that the provisions for  filing the written statement under Order 8 Rule 1 of the  CPC are directory in nature and therefore, it was open  to the court to condone the delay in filing the written  statement and such written statement filed by the  appellant could be accepted. Before we consider  whether the provisions under Order 8 Rule 1 of the  CPC are mandatory or directory in nature, we need to  consider the provisions under Order 8 Rule 1 of the  CPC which run as under: -

"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."

6.      As noted herein earlier, the trial court as well as  the High Court, relying on the proviso to Order 8 Rule  1 of the CPC, refused to permit the appellant to file the  written statement on the ground that such written  statement was filed after 90 days from the date of  service of summons. 7.      Considering the facts and circumstances of the  present case and the statements made in the application  for condoning the delay in filing the written statement,  we are not in a position to hold that the appellant was  not entitled to file the written statement even after the  expiry of the period mentioned in the proviso to Order 8  Rule 1 of the CPC. After reading the provisions, in  particular the proviso to Order 8 Rule 1 of the CPC, we  are unable to hold that the provisions under Order 8  Rule 1 are mandatory in nature. In Salem Advocate Bar  Association, Tamil Nadu vs. Union of India [AIR

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2005 SC 3353], it has been clearly held that the  provisions including the proviso to Order 8 Rule 1 of  the CPC are not mandatory but directory. It has been  held in that decision that the delay can be condoned and  the written statement can be accepted even after the  expiry of 90 days from the date of service of summons  in exceptionally hard cases. It has also been held in that  decision that the use of the word "shall" in Order 8  Rule 1 of the CPC by itself is not conclusive to  determine whether the provision is mandatory or  directory. The use of the word "shall" is ordinarily  indicative of mandatory nature of the provision but  having regard to the decision in that case, the same can  be construed as directory. In paragraph 21 of the said  decision, this court observed as follows: -  "The use of the word ’shall’ in order 8 Rule  1 by itself is not conclusive to determine  whether the provision is mandatory or  directory. We have to ascertain the object  which is required to be served by this  provision and its design and context in  which it is enacted. The use of the word  ’shall’ is ordinarily indicative of mandatory  nature of the provision but having regard to  the context in which it is used or having  regard to the intention of the legislation, the  same can be construed as directory. The  rule in question has to advance the cause of  justice and not to defeat it. The rules of  procedure are made to advance the cause of  justice and not to defeat it. Construction of  the rule or procedure which promotes  justice and prevents miscarriage has to be  preferred. The rules or procedure are hand- maid of justice and not its mistress. In the  present context, the strict interpretation  would defeat justice."  

8.      Therefore, following the principles laid down in  the decision, as noted hereinabove, it would be open to  the court to permit the appellant to file his written  statement if exceptional circumstances have been made  out. It cannot also be forgotten that in an adversarial  system, no party should ordinarily be denied the  opportunity of participating in the process of justice  dispensation. Therefore, unless compelled by express  and specific language of the statute, the provisions of  Order 8 Rule 1 of CPC or any procedural enactment  should not be construed in a manner, which would  leave the court helpless to meet extraordinary situations  in the ends of justice. Keeping this principle as laid  down by this court in the case of Salem Advocate Bar  Association (supra) in mind and in view of our  observations made herein above, we now look into the  averments made in the application for condoning the  delay in filing the written statement.  In the application,  it has been stated that on instruction of his counsel in  the trial court, the written statement was not filed within  the period of limitation as the appellant was under  bonafide belief that the written statement shall be filed  after the decision of the appeal by the District Court.  The written statement was, however, filed and the  records of the case were called from his lawyer who has  been conducting his case in the appeal pending before  the District Court. The facts disclose that the misc.

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appeal has been filed against an order of injunction  before the District Court \026 Chandrapur whereas the suit  is pending before the Civil Judge, Junior Division,  Nagbhid. Since the appeal was pending, the records of  the appellant were then lying with the lawyer at  Chandrapur. Therefore, the file was not available with  the lawyer of the appellant at Nagbhid and therefore,  the written statement could not be filed within the  period of limitation. Such being the position, in our  view, the facts stated would constitute sufficient cause  for condoning the delay in filing the written statement  and it has to be taken that the non-availability of  records at Nagbhid had prevented the appellant from  filing the written statement within the period of  limitation which in our view was an exceptional case  constituting sufficient cause for condoning the delay in  filing the written statement. In this view of the matter,  in the facts and circumstances of the case and in view  of the reasoning given above, we hold that the High  Court as well as the trial court had erred in rejecting the  application for condoning the delay in filing the written  statement. Accordingly, the application for condoning  the delay is allowed and the written statement filed by  the appellant is accepted and consequent thereupon, the  impugned order which affirmed the order of the trial  court rejecting the application for condoning the delay  in filing the written statement is set aside. The trial  court shall now proceed with the hearing of the suit and  dispose of the same positively within one year from the  date of supply of a copy of this order to it.

9.      For the reasons aforesaid, this appeal is allowed to  the extent indicated above. There will be no order as to  costs.