Jagmani Kujur Uraon W/o Late Manga Kujur Uraon, Aged About 73 Years R/o v. 1. Umesh Kacchap S/o Sudharam Kacchap Aged About 64 Years R/o Infront Of Anika
Case Details
1 SIDDHANT TAMRAKAR Digitally signed by SIDDHANT TAMRAKAR Date: 2025.02.25 17:18:19 +0530 2025:CGHC:9315 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 174 of 2025 Jagmani Kujur Uraon W/o Late Manga Kujur Uraon, Aged About 73 Years R/o House No. B-7 Chinar, Green Gardens Colony, Mungeli Road Tehsil And District Bilaspur (C.G.). ... Petitioner(s) versus 1. Umesh Kacchap S/o Sudharam Kacchap Aged About 64 Years R/o Infront Of Anika Heights, Bhavna Nagar Khamardih Ward No. 31, Tehsil And District Raipur (C.G.). 2. State Of Chhattisgarh Through Collector, District - Raipur, Chhattisgarh. (Cause Title is taken from Case Information System) ... Respondent(s)
Facts
For Petitioner/defendant No. 1 : Mr. Sameer Oraon, Advocate For State
Legal Reasoning
4. In view of the aforesaid judgment, we find that the delay in filing of the written statement could very well be compensated with costs but denying the benefit of filing of the written statement is unreasonable. 5. Consequently, we allow the present appeal. The order passed by the High Court is set aside. The written statement already filed is taken on record. 6. We do hope that the trial Court shall expedite the decision of the suit keeping in view the old age of the plaintiff.
Arguments
: Mr. Dashrath Prajapati, Panel Lawyer Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 24. 02.2025 1. By way of this petition, the petitioner has sought the following relief(s):- “10.1 A writ and/or an order in the nature of appropriate writ do issue setting aside the impugned order dated 04.12.2024 (Annexure P-1) in effect denied opportunity to file written statement of CPC by the respondents in the facts and circumstances of the case, and allow the petitioner to file his written statement on such terms and conditions. 10.2 A writ and/ or an order in the nature of appropriate writ do issue calling the records of the court below 2 pertaining to the case of the petitioners for perusal of this Hon'ble Court, if this Hon'ble Court thinks fit in the facts and circumstances of the case. 10.3 Cost of the proceedings. 10.4 Any other writs and directions that may be deemed fit and just in the facts & circumstances of case.” 2. Learned counsel for the petitioner would submit that the plaintiff/respondent No. 1 filed a Civil Suit for declaration of title and permanent injunction over the road of the colony as his private property. Defendant No. 1/petitioner filed an application under Order 7 Rule 11 of CPC, which was allowed vide order dated 17.02.2021. He would further submit that a first appeal was preferred by respondent No. 1 and the matter was remitted back to decide it afresh on merits. He would also submit that an application under Section 12 of the Suits Valuation Act, 1887 was moved as the suit was not properly valued by the plaintiff and that application was rejected vide order dated 21.11.2024. He would contend that the case was set for filing of the written statement by defendant No. 1 on 04.12.2024 and on that date, the petitioner sought time and the learned trial Court rejected the prayer on the ground that defendant No. 1/petitioner could not file the written statement within the mandatory period of 120 days. He would further contend that the reasons assigned by the learned trial Court are erroneous as the period of 90 days provided in Order 8 Rule 1 of CPC is directory in nature. In support thereof, he placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Salem Advocate Bar Association, T.N. vs. Union of India reported in (2005) 6 SCC 344, Kailash vs. Nanhku and others reported in (2005) 4 SCC 480 and Bharat Kalra vs. Raj Kishan Chabra reported in 2022 SCC OnLine SC 613. 3. On the other hand, learned counsel appearing for the State would oppose. 3 4. I have heard learned counsel for the parties and perused the documents placed on record. 5. In the matter of Salem Advocate Bar Association, T.N. (supra), the Hon’ble Supreme Court in para 20 and 21, while dealing with the provisions of Order 8 Rule 1 of CPC held that provisions are not mandatory. Para 20 and 21 are reproduced herein-below:- “20. The use of the word 'shall' in Order VIII 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 handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice. 21. In construing this provision, support can also be had from Order 8 Rule 10 which provides that 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, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to suit as it thinks fit. In the context of the provision, despite use of the word 'shall', the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order 8 Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order 8, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII Rule 1. There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. 4 The Court has wide power to 'make such order in relation to the suit as it thinks fit'. Clearly, therefore, the provision of Order 8 Rule 1 providing for upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8 Rule 1.” 6. The Hon’ble Supreme Court in the matter of Kailash (supra) in para 9 and 44 held as under:- “9. Sub-section (6) of Section 86 of the Act requires trial of an election petition to be continued from day to day until its conclusion, so far as is practicable consistently with the interests of justice in respect of the trial, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded. Sub-section (7) requires every election petition to be tried as expeditiously as possible with an endeavour to conclude the trial within six months from the date of presentation of the election petition. Thus, the procedure provided for the trial of civil suits by the CPC is not in its entirety applicable to the trial of election petitions. The applicability of the procedure is circumscribed by two riders; firstly, the CPC procedure is applicable "as nearly as may be"; and secondly, the CPC procedure would give way to any provisions of the Act and of any rules made thereunder. 44. The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the court. In no case, the defendant shall be permitted to seek extension of time when the court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel. The court may impose costs for dual purpose: (i) to deter the defendant from seeking any extension of time just for asking and (ii) to compensate the plaintiff for the delay and inconvenience caused to him. 7. In the matter of Bharat Kalra (supra), the Hon’ble Supreme Court relied on the judgment rendered in Kailash (supra) and held as under:- “1. Leave granted. 2. The challenge in the present appeal is to an order passed by the High Court on 12.08.2021 whereby delay of 193 days in filing of the written statement was not condoned. 5 3. Admittedly, the suit for injunction filed by the plaintiff is not the one which is governed by the Commercial Court Act, 2015. Therefore, the time limit for filing of the written statement under Order VIII Rule 1 of CPC is not mandatory in view of the judgment of this Court reported as ‘Kailash V. Nankhu & Ors.’ reported in (2005) 4 SCC 480.
Decision
7. Pending application(s), if any, also stand disposed of.” 8. Now coming to the facts of the present case, a suit was filed by respondent No. 1/plaintiff on 17.12.2020. An application under Order 7 Rule 11 of CPC was moved by the petitioner/defendant No. 1 and it was allowed. The plaintiff/respondent No. 1 preferred an appeal and the matter was remitted back to decide it afresh on merits. Thereafter, the petitioner moved an application under Section 12 of the Suits Valuation Act, 1887 on the ground that the suit was not properly valued by the plaintiff and that application was rejected vide order dated 21.11.2024. The case was fixed for hearing before the learned Court below on 04.12.2024 and the petitioner sought some time to file the written statement, but that prayer was rejected and the right of the petitioner to file a written statement was closed. 9. Taking into consideration the law laid down by the Hon’ble Supreme Court in the above mentioned cases, provisions of Order 8 Rule 1 of CPC and the facts of the present case, the order passed by the learned trial Court dated 04.12.2024 is not sustainable, whereby the right of the petitioner to file a written statement has been closed. Consequently, the said part of the order is hereby quashed subject to payment of a cost of Rs. 2,000/- payable to the plaintiff. The learned trial Court shall afford an opportunity to 6 the petitioner to file the written statement. 10. Accordingly, the instant petition is hereby allowed. $iddhant Sd/- (Rakesh Mohan Pandey) Judge