High Court
Case Details
WP(C) 4377/2004 BEFORE HON’BLE MR. JUSTICE N.KOTISWAR SINGH The present civil revision petition treated as an application under Article 227 of the Constitution, has been preferred against the order dated 27.5.2004 passed by the District Judge, Tinsukia, in Title Suit (D) No.32/2003 by which the Dist rict Judge, Tinsukia, had refused to allow filing of written statement by the p resent petitioner (who was the Respondent No.1 in the Trial Court) on the groun d that the same was filed beyond 90 days permissible under Order 8 Rule 1 of Cod e of Civil Procedure, 1908. [2] f consideration of this petition may be stated as follows. The brief facts of the case as may be relevant for the purpose o
Legal Reasoning
The respondent in the present petition had filed a petition unde r section 27 of the Special Marriage Act, 1954 read with Section 13 (1) (i), (i- a) of the Hindu Marriage Act, 1955 before the District Judge, Tinsukia on 25.9.2 003 against the present petitioner and another person, namely, Shri Partha Paul Choudhury seeking divorce and custody of two sons. The said petition was registe red as Title Suit (D) No.32 of 2003. On 01.10.2003, the District Judge, Tinsukia , issued notice to the present petitioner and other co-respondent. The present p etitioner, after receiving the notice on 23.12.2003, entered appearance through a lawyer on 04.11.2003. On 03.01.2004, the petitioner sought time to file writte n statement. However, as notice on the other co-respondent was returned unserved , the Trial Court directed for issue of fresh notice fixing 20.2.2004 for servic e of notice and for filing written statement. On 20.02.2004, the petitioner file d an application seeking time to file written statement. As the notice sent to t he co-respondent was returned unserved again, the Trial Court directed to issue notice to the co-respondent by registered post fixing 19.3.2004 for submitting s ervice report. When the matter was taken up on 19.3.2004, the petitioner filed a n application praying for maintenance pendente lite and also another application praying time to file written statement. The order dated 19.3.2004 passed by the learned District Judge, is reproduced as follows:- (cid:28)19.3.2004 : Seen petition No. 233/04 filed by Respondent No.1 praying maintena nce pendente lite. Respondent further files petition No.236/04 praying time to f ile W/S. Petitioner is absent. Heard ld. Lawyer of Respondent. Fix 26.4.2004 for filing objection if any, of the Petition No.235/2004 b y Petitioner of this case. Petitioner may take copy of Petition No.235/2004. Time is allowed to Respondent No.1 for filing W/S. In the meantime, ld.l awyer of Petitioner is present. Petitioner has take steps to issue notice to co- respondent. Fix as above for S.R. of co-respondent. (cid:29) The Trial Court fixed 26.4.2004 for filing objection to the said application filed by the petitioner for maintenance pendente lite and also allo wed time for filing written statement. However, since 26.4.2004 was declared hol iday on the ground of Parliamentary elections, the record was put up on 27.4.200 4 and on that day, the Trial Court fixed 27.5.2004 for further hearing of the ap plications/objections. On 27.4.2004, the present respondent had filed an objecti on to the petition for alimony pendente lite filed by the present petitioner u/s 36 of Special Marriage Act read with Section 24 of the Hindu Marriage Act. The present respondent also submitted an objection against non-filing of written st atement. [3] On 27.5.2004, the learned District Judge took up the matter rega rding application filed by the present petitioner for accepting the written stat ement filed and also the objection raised thereof by the present respondent. The learned District Judge accepted the objection filed by the present respondent a nd declined to accept the written statement filed by the petitioner and directed that the suit be proceeded ex-parte. Opposing the filing of written statement by the present petition er, the respondent had submitted before the learned District Judge, that after the amendment of Code of Civil Procedure, duration of filing of written statemen t has been limited to 30 days from the date of service of the same which can be extended by another 60 days if sufficient reason is shown for not being able to file written statement within 30 days, by relying on the decision of this Court in Baliram Prasad Gupta vs. Md. Isa, reported in 2003 (3) GLT 30. On the other hand, it was submitted on behalf of the present pet itioner that Courts should be liberal in filing written statement as the suit re lates to matrimonial disputes and the procedure prescribed in Code of Civil Proc edure ought not be adopted strictly in letter and if the written statement was n ot accepted, it would lead to miscarriage of justice. The learned District Judge , after hearing the parties, observed that Section 40 of the Special Marriage A ct allows that all the proceedings under the Act shall be regulated, as far as m ay be, by the Code of Civil Procedure. Section 21 of the Hindu Marriage Act also speaks in similar terms. It was held that thus going by the nature of Sections 40 and 21 of the aforesaid Acts, it can be said that the procedure prescribed in the Code of Civil Procedure need not be applied in the matrimonial disputes mu tatis-mutandis and at least word by word. However, it was also observed that ev en then, the Court cannot ignore the spirit in view of the new amendment in the Code of Civil Procedure which is aimed at speedy disposal of the civil matters . The Trial Court also observed that the summon was served upon the present peti tioner on 23.12.2003 and the written statement was filed after more than six mon ths and the learned Trial Court by referring to the decision of this Court repor ted in Baliram Prasad Gupta (supra) relied upon by the petitioner therein held t hat the Court was bound to follow the law laid down in the said case of Baliram Prasad Gupta (supra) and accordingly, the objection raised by the respondent her ein for not accepting the written statement was sustained and directed that the suit be proceeded ex-parte. Against the aforesaid order dated 27.5.2004 passed by the learne [4] d District Judge, Tinsukia, in the said suit, the present petition has been pref erred.
Legal Reasoning
I have heard Mr. K.Agarwal, learned counsel appearing for the p etitioner. None appeared for the respondent. Learned counsel appearing for the petitioner has submitted that the order of this Court passed in Baliram Prasad Gupta (supra) is no more good l aw in view of the subsequent decisions of the Hon’ble Supreme Court rendered in the cases of Salem Advocate Bar Association, T.N. vs. Union of India, reported i n (2005) 6 SCC 344, Kailash vs. Nanku & ors. reported in (2005) 4 SCC 480 and Ra ni Kusum (Smt) vs. Kanchan Devi (Smt) & ors. reported in (2005) 6 SCC 705 whereb y it has been held that provisions of Order 8 Rule 1 of Code of Civil Procedure, 1908 relating to putting an embargo of 90 days on filing of written statement i s directory in nature, apart from the fact that the provisions of Code of Civil Procedure cannot be applied in letter and spirit to the proceedings under Hindu Marriage Act, 1955 as well as the Special Marriage Act, 1954. It has been also submitted by the learned counsel for the petit ioner that sufficient ground had been furnished for not filing of written statem ent within the stipulated 90 days, which was, however, not properly appreciated by the learned Trial Court and the learned Trial Court ought to have allowed the filing of written statement, as otherwise it would cause grave injustice. The present proceeding before the District Judge at Tinsukia, wh ich was registered as Title Suit (D) No.32/2003, was initiated by the present r espondent, Shri Dilip Das against the present petitioner, Smt. Ratna Das and an other person, Shri Partha Paul Choudhury, who was impleaded as co-respondent in the said proceeding. In the aforesaid suit, the petitioner, Dilip Das had sought for a decree of divorce mainly on the ground that the present petitioner was ha ving an illicit relationship with the co-respondent. It is also noticed that at the time of passing the impugned orde r dated 27.5.2004, notice had not yet been served to the aforesaid co-respondent , namely, Shri Partha Paul Choudhury. From the record, it is evident that notice by the Court below was issued against the respondents for the first time on 01. 10.2003 and notice was received by the present petitioner , who was the respond ent No.1 therein on 24.12.2003 and entered appearance on the next date fixed on 04.11.2003. On 19.3.2004, the present petitioner filed an application prayin g for maintenance pendente lite and also sought time for filing of written stat ement and the Court fixed the next date on 26.4.2004 for further consideration. However, the matter could not be taken on 26.4.2004 as it was declared a holida y because of Parliamentary elections and it was put up on the next day i.e. on 2 7.4.2004, on which date, the present respondent, Shri Dilip Das filed an object ion against the application for maintenance pendente lite and also filed an obj ection against non-filing of written statement and the learned Trial Court fixe d 27.5.2004 for hearing these matters. On 27.5.2004, the present petitioner also filed a counter object ion to the petition filed by the present respondent against non-filing of writte n statement. The present petitioner had submitted that she had already filed an application for deferring the filing of written statement till the disposal of t he petition for maintenance pendente lite u/s 24 of the Hindu Marriage Act. The learned Trial Court held that even though provisions of Code of Civil Procedure cannot be applied in the divorce proceedings, mutatis-mutand is and at least word by word, the Court cannot ignore the spirit in view of t he new amendment in the Code of Civil Procedure which has been aimed at speedy disposal of the civil matters. The learned Trial Court also held that even thoug h the summon was served upon the present petitioner on 23.12.2003, the written s tatement was filed only on 27.5.2004 after more than six months and held that ev en if the written statement could not be filed on 26.4.2004, it could have been filed on the next opening day and the learned Trial Court by following the dec ision of this Court in Baliram Prasad Gupta (supra) as binding upon it sustained the objection against non-filing of written statement within 90 days and direct ed that the suit be proceeded ex-parte. [5] The present petition relates to a proceeding initiated under sec tion 27 of the Special Marriage Act, 1954 read with Section 13 (1) (i), (i-a) of the Hindu Marriage Act, 1955. As per Section 40 of the Special Marriage Act, 1 954, it has been provided that subject to the other provisions contained in the Act, and to such rules as the High Court may make in this behalf, all the proce edings under the Act shall be regulated, (cid:28)as far as may be (cid:29), by the Code of Civi l Procedure. It has been also provided in similar terms under Section 21 of the Hindu Marriage Act, 1955. The aforesaid provisions of Sections 40 and 21 of the said Acts therefore provide that provisions of the Code of Civil Procedure shal l be applicable (cid:28)as far as may be (cid:29) in the proceedings under the aforesaid Acts. The Hon’ble Supreme Court in Kailash (supra) while dealing with the applicabilit y of the provisions of Code of Civil Procedure in the Election trial, after refe rring to Section 87 of the Representation of People Act, 1951, which provided th at every election petition shall be tried by the High Court, (cid:28)as nearly as may b e (cid:29) in accordance with the procedure applicable under the Code of Civil Procedure , 1908, held that the procedure provided for trial of civil suits under Code of Civil Procedure is not applicable in its entirety to the trial of election petit ions. Following the aforesaid principle, there can be no doubt that the provisio ns of Code of Civil Procedure cannot be applicable in its entirety and strictly in the proceeding under the Special Marriage Act, 1954 as well as Hindu Marriag e Act. Further, the Hon’ble Supreme Court also has held in Salem Advo cate Bar Association, T.N. (supra) and Rani Kusum (Smt) (supra) that the provisi ons of Order 8 Rule 1 of the Code of Civil Procedure are directory in nature an d held that the time schedule contained in the provisions is to be followed as a rule and departure therefrom would be by way of exception and extension of t ime may be allowed by way of exception for reasons to be assigned by the defenda nt and also place on record in writing whatsoever briefly by the Court on its b eing satisfied. What therefore emerges is that provisions of Code of Civil Proce dure need not be strictly applied in the proceedings under the Special Marriage Act, 1954 as well as the Hindu Marriage Act, 1955 and the provisions of Civil Pr ocedure Code should act as guiding principles. Further, as the provisions of Ord er 8 Rule 1 had been declared as directory, the Courts while dealing with matter s under the Special Marriage Act or the Hindu Marriage Act ought not construe t he failure to file written statement within 90 days to be fatal. The Court while dealing with the issue of delay in filing written statement, ought to keep in m ind the attending circumstances and need not be too swayed by the desirability o f filing written statement within 90 days as provided under Order 8 Rule 1 of th e Code of Civil Procedure. Therefore, keeping the above legal position in mind which has d enuded the precedential value of the decision in Baliram Prasad Gupta (supra), t his Court has to examine whether in the present case, non-filing of written stat ement by the present petitioner beyond 90 days would be fatal. Admittedly, writt en statement was not filed within 90 days. However, it is seen from the records that even though the present petitioner had not filed written statement within 9 0 days of service summon upon the present petitioner, summon had not yet been se rved upon the other co-respondent till the passing of the impugned order on 27. 5.2004. The petition for divorce was filed primarily on the ground of the prese nt petitioner having an illicit relationship with the other co-respondent and as such, without a notice being served upon the other co-respondent, the said suit could not have been effectively proceeded, other than dealing with the collater al issues like maintenance pendente lite, etc. It has been noted that the learn ed Trial Court had fixed 26.4.2004 for filing of written statement, but since 26 .4.2004 was declared holiday due to parliamentary elections, it was not possible to file the written statement on that day. The learned District Judge held that even if 26.4.2004 was a holiday, the respondent-petitioner could have submitted the written statement on the next opening day and 90 day was already over befor e 26.4.2004. However, it may be noted that there was no finding by the learned D istrict Judge, Tinsukia, that there was gross negligence or any finding by the C ourt to the effect that the present petitioner, who was the respondent therein, was interested in delaying the proceeding. The main purpose of enactment of the Order 8 Rule 1 of the Code of Civil Procedure is to curb the mischief of unscrup ulous defendants adopting dilatory tactics, delaying the disposal of cases causi ng inconvenience to plaintiffs as the main object is to expedite hearing of the matter in issue. In the present case as stated above, the notice upon the co-resp ondent had not yet been served against whom serious allegation had been made, wh ich was the foundational basis of the claim for divorce and as such, there could not have been effective adjudication even if the written statement had been fil ed in time, in absence of service of notice to the other co-respondent. The suit could not have been proceeded for deciding the principal issue without serving notice upon the other respondent. The petitioner had also filed an application f or maintenance pendente lite under section 24 of the Hindu Marriage Act and sec tion 38 of the Special Marriage Act, 1954 which was yet to be decided. The peti tioner had also made an application for deferring filing of written statement t ill the consideration of the application for maintenance pendent elite. It coul d not be said that there was gross negligence or deliberate intention to delay t he proceedings. Therefore, considering the matter in its entirety, this Court is of the view that the learned District Judge ought to have allowed filing of wri tten statement. This Court has also noted the fact that there was an interim or der passed by this Court on 19.7.2004 in Misc. Case No.2000/04 staying the proc eedings of the suit though permitted hearing and disposal of the application for maintenance pendent elite, and records had been called for because of which the suit could not be proceeded. Accordingly, the present petition is allowed by se tting aside the impugned order dated 27.5.2004. The present petitioner, who is t he respondent No.1 in the said Title Suit (D) No.32/2003, may be allowed to file her written statement and the suit may be proceeded in accordance with law. Th e lower Court records be immediately sent back.