Mani Lal Sah v. The State of Bihar through the District Returning Officer-cum- Collector, Khagaria

For the Petitioner For the State For Respondent No. 10 For Respondent No. 14 ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER Mr. Dronacharya, Advocate Mr. Rajiv Kumar Singh, G.P. 2 Mr. Pramod Kumar, Advocate Mr. Rajesh Kumar, Advocate 4 26-09-2013 The petitioner is aggrieved by an order dated

4.3.2013, passed by learned Munsif, Khagaria in E.W. No. 14/11 whereby the learned court below has rejected a petition dated

19.2.2013 filed by the petitioner to recall an earlier order dated 2 Patna High Court CWJC No.7579 of 2013 (4) dt.26-09-2013

23.1.2012. In the said election petition, the petitioner is Defendant No. 12 and by order dated 23.1.2012, he had been debarred from filing his written statement.

2. I have heard Mr. Dronacharya, learned counsel for the petitioner, Mr. Rajesh Kumar, learned counsel appearing on behalf of Respondent No. 13 (election petitioner), Mr. Pramod Kumar, learned counsel for the Respondent No. 10 as well as Mr. Rajiv Kumar Singh, learned Government Pleader No. 2 for the State of Bihar.

3. The Respondent No. 13 challenged the election of Respondent No. 3 as Mukhiya of East Thatha Panchayat under Khagaria district by filing an election petition numbered as E.W. No. 14/11 on the grounds, inter alia, that the returned candidate had adopted corrupt practices. Upon service of notice, the petitioner entered appearance on 11.7.2011. He however, did not file his written statement. By an order dated 23.1.2012, the learned court below debarred him from filing his written statement. Issues were framed. On 19.2.2013 i.e. more than one year after he was debarred from filing his written statement, the petitioner filed an application for recall of the order dated

23.1.2012 and also for permitting him to file the written statement. The learned court below however, rejected his application by an 3 Patna High Court CWJC No.7579 of 2013 (4) dt.26-09-2013 order dated 4.3.2013 on the ground that an election petition was required to be disposed of expeditiously keeping in mind the time frame. The court apparently was not satisfied with the plea of the petitioner that in spite of due diligence, the written statement could not be filed at an earlier stage.

4. Mr. Dronacharya, learned counsel appearing on behalf of the petitioner has submitted that cause of justice should be paramount consideration while permitting or debarring a defendant from filing of written statement. He contends, with reference to judicial pronouncements, that the conditions under Proviso to Order VIII, Rule 1 of the Code of Civil Procedure are not mandatory and are directory in nature and the court can and should extend the period of filing of written statement for the ends of justice. He further submits that no prejudice would have been caused to the parties had the petitioner been allowed to file his written statement as the trial before the election tribunal had not progressed much at the stage when the petitioner filed an application for recall of the order debarring from filing written statement because by that time only one witness was examined and cross-examined. He further submits that other defendants were allowed to file their written statement subject to payment of cost by the election tribunal by orders dated 7.3.2012, 15.6.2012 4 Patna High Court CWJC No.7579 of 2013 (4) dt.26-09-2013 and 17.8.2012.

5. He has placed reliance upon a judgment of Hon’ble Supreme Court reported in (2005) 4 SCC 480 (Kailash v. Nanhku and Ors.) in support of his plea that Proviso to Order VIII Rule 1 of the Code of Civil Procedure is merely directory in nature and it should not be applied strictly. For the same plea he has relied upon another judgment of this Court reported in 2005 (2) PLJR 482 (Smt. Sunita Devi & Ors. Vs. Abdhesh Kumar Sinha @ Kamleshwari Pd. Sinha & Ors.).

6. Evidently the petitioner had appeared after service of notice upon him on 11.7.2011. He did not file his written statement, leading to passing of an order dated 23.1.2012 debarring him from filing written statement. Having appeared in the election petition, it is to be presumed that he had knowledge about the order dated 23.1.2012 by which he was debarred from filing the written statement. The petitioner however, did not take any step immediately thereafter for recall of the said order. More than a year thereafter on 19.2.2013, he filed a vague application seeking recall of the order dated 23.1.2012 and permission to file written statement on the ground that because of lack of documents and illness of his wife, he could not file his written statement. There is absolutely no reference in the said application dated 5 Patna High Court CWJC No.7579 of 2013 (4) dt.26-09-2013

19.2.2013, which is Annexur-2 to the present application, as to what documents the petitioner lacked which prevented him from filing the written statement. There is no reference in the said application as to the nature of ailment which the petitioner’s wife was suffering from, which prevented the petitioner from filing written statement. So far as the jurisdiction of the courts to extend time for filing written statement is concerned, it is true that the courts have held the Proviso to Order VIII Rule 1 of the Code of Civil Procedure to be directory in nature and the courts have held that in appropriate case the trial court can extend the date for filing written statement after recording reason and satisfaction that such extension is essentially required for the ends of justice, if for genuine and bona fide reasons such written statement could not be filed within time.

7. The Supreme Court in the case of Kailash v. Nanhku and Ors. (supra), reliance upon which has been placed by Mr. Dronacharya, learned counsel for the petitioner has held that Order VIII, Rule 1 of the Code of Civil Procedure is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil causes. At the same time, the Supreme Court has held that this should not be misunderstood as nullifying the entire force and impact of the Proviso to Rule VIII 6 Patna High Court CWJC No.7579 of 2013 (4) dt.26-09-2013 (1) of the Code of Civil Procedure. The Supreme Court held that the object behind substituting Order VIII, Rule 1 of the Code of Civil Procedure in the present shape was to curve the mischief of unscrupulous defendants adopting dilatory tactics, delaying disposal of cases much to the chagrin of plaintiffs and petitioners approaching the court for quick relief. In my opinion, an election petition is required to be decided expeditiously as delay in decision of an election petition will frustrate the very purpose of it if the period for which the elections are held, is allowed to pass during the pendency of election case. In my opinion, though, Proviso to Order VIII, Rule 1 of the Code of Civil Procedure is directory but time as prescribed therein for filing written statement should be extended only in exceptional circumstance where the court is of the opinion that there was bona fide reason behind a defendant not filing the written statement within time and non filing of such written statement will cause grave injustice.

8. From the facts indicated above, this Court forms an opinion that the petitioner was not only negligent in filing his written statement, his inaction in doing so and subsequently seeking permission for filing written statement more than one year after he was debarred from filing written statement was deliberate, so as to delay the disposal of election petition. The plea that other 7 Patna High Court CWJC No.7579 of 2013 (4) dt.26-09-2013 persons were allowed to file their written statements and, therefore, this petitioner should also have been allowed also cannot be accepted. The last order by which one of the defendants was allowed to file the written statement after recalling the earlier order dated 23.1.2012 was passed on 17.8.2012 whereas the petitioner filed his application on 19.2.2013, i.e. six months thereafter. The reasons assigned in his application for not filing the written statement in time are wholly unsatisfactory and in my opinion unbelievable.

9. I do not find any merit in this application. This application is accordingly, dismissed. (Chakradhari Sharan Singh, J.) Sanjay/-