Zahidunnisa v. C.A. Sattar

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 10.04.2008CoramThe Honourable Mr.Justice S.RAJESWARANC.R.P.(PD) No.1287 of 2008andM.P.No.1 of 2008Zahidunnisa ... Petitioner Vs.1.C.A.Sattar2.Sar-an Bi alias Saru3.Imtiaz ... RespondentsCivil Revision Petition has been filed Under Section 227 of theConstitution of India to allow this appeal and set aside the fairand decreetal order dated 27.11.2007 dismissing the I.A.No.1258 of2004, and allow the petition in I.A.No.1258 of 2004 in O.S.No.678 of2004 on the file of the Fast Track Court No-I, Chengalpattu. For Petitioner : Mr.C.A.Khabeer For Respondents : Mr.D.Dharamchand Jain O R D E R The plaintiff in O.S.No.678 of 2004 is the revisionpetitioner before this Court. The suit in O.S.No.678 of 2004 hasbeen filed by the petitioner/plaintiff for partition. The defendantshave filed a written statement. Pending suit, thepetitioner/plaintiff filed an application in I.A.No.1258 of 2004 topronounce judgment in the suit as the defendants failed to present thewritten statement within the period prescribed under Order 8 Rule 9CPC. The same was resisted by the respondents/defendants. The TrialCourt by an order dated 27.11.2007 dismissed that application.Aggrieved by the same, the above civil revision petition has beenfiled. 2. I have heard the learned counsel appearing for the petitionerand I have also gone through the documents filed in support of thissubmission.3. The learned counsel for the petitioner submit that the trialCourt committed an error in accepting the written statement afterexpiry of the time limit prescribed under Order 8, Rule 9 CPC asamended by the Act,2002. According to him, the trial Court did not https://hcservices.ecourts.gov.in/hcservices/ consider the case put forth by the petitioner that under Order 8 Rule9 CPC., the Court has been given discretionary power to require awritten statement from any of the parties and fixing a time of notmore than 30 days for presenting the same. But the discretion anypower to grant time for filing written statement has been restrictedin Order VIII Rule 1 CPC, according to which the time given shall notbe later than 90 days from the date of service of summons. The timewas granted by the trial Court up to 05.06.2003, for filing writtenstatement, by the order dated 25.03.2003, though that fell beyond the30 days period restricted under Order VIII Rule 1 CPC. The acceptanceof the written statement after the expiry of the limitation periodprescribed by the law is illegal. On the expiry of the timeprescribed by law, the petitioner acquires the right under Order VIIIRule 10 CPC to obtain judgment against the defendants who failed tofile written statement within time. Hence according to the learnedcounsel for the petitioner the rejection of I.A.No.1258 of 2004 isillegal and the same is to be allowed. 4. In support of his submission, the learned counsel for thepetitioner relied on a decision reported in 2003 – 3 Law weekly 564(Ponnammal Vs. Subramanian and another) and another decisionreported in AIR 2007 SC 1574 (M/s.Aditya Hotels (p) Limited Vs. BombaySwadeshi Stores Limited and others). The learned counsel for thepetitioner has also further relied on a decision reported in AIR 2007SC 1077 (Hasham Abbas Sayyad Vs.Usman Abbas Sayyad and others).5. I have considered the submissions of the learned counsel forthe petitioner with regard to facts and citations.6. The revision petitioner as plaintiff filed I.A.No.1258 of2004 under Order VIII Rule 10 CPC and the prayer in the petitionerreads as under:-"For the reasons stated in the accompanying original and theadditional affidavit, it is prayed that the Hon'ble Court may bepleased to pronounce judgment against the defendants and in favour ofthe plaintiff as the written statement filed on 23.07.2003 in the suitmaking counter claim as to the title of the suit properties has notbeen presented within the time of the ninety days from 01.07.2002 aspermitted under the Rule 1 of Order VIII CPC 2002, or has not beenpresented within the time of thirty days as fixed under the Rule 9 ofOrder VIII, CPC from the order dated 25.03.2003 made by this Hon'bleCourt in the suit, and render justice expeditiously, or, inalternative refer to the Hon'ble High Court under Section 113 CPC fordecision of the substantial question of law stated in the para 2 ofthe additional affidavit, and render justice."7. In respect of the above submissions, it is stated by thepetitioner in her affidavit, that the suit has been filed forpartition and separate possession among the family members. It is hercase that the defendants failed to file the written statement withinthe time stipulated under Order VIII Rule 1 of CPC as amended by Act1999 and 2002. It is her further case that the defendants have also https://hcservices.ecourts.gov.in/hcservices/ failed to file the written statement as required by the trial Court byits order dated 25.03.2003 exercising its power under Order 8 Rule 9.Therefore, written statement filed subsequently by the defendantsafter the prescribed period is liable to be dismissed and judgment isto be pronounced in favour of the plaintiff under Order VIII Rule 10of CPC.8. This was resisted by the defendants by filing a counter,wherein it is stated that an exparte order passed by the trial Courtwas set aside on 25.03.2003 in I.A.No.158 of 2002. Thereafter the suitwas posted for final hearing on 05.06.2003 and again 02.07.2003 thewritten statement was filed on 02.07.2003 and thereafter the suit isto be decreed on merits. It is contended that the provisions of theamended CPC are only discretionary in so far as the period of timeprescribed for filing the written statement concerned. The trialCourt after observing that originally the suit was filed before theAdditional Sub Judge and thereafter written statement filed after theexparte order was set aside and the same was also accepted. The suitwas posted for issues. The trial Court after referring the Hon'bleSupreme Court Judgment reported in 2007(4)CTC 326 held that if thewritten statement is received after the time prescribed, the same isnot an illegality. Hence, the trial Court dismissed I.A.No.1258 of2004.9. After going through the order of the trial Court, I am of theconsidered view that the same has been correctly passed and the sameneed not be interfered with.10. Order VIII rule 1 CPC reads as under:-"Written statement – The defendant shall, within thirtydays from the date of service of summons on him, present awritten statement of his defence:Provided that where the defendant fails to file thewritten statement within the said period of thirty days, heshall be allowed to file the same on such other day, as maybe specified by the Court, for reasons to be recorded inwriting, but which shall not be later than ninety days fromthe date of service of summons."11. From the above it is clear that the defendant in a suit hasto file written statement of his defence within 30 days from the dateof service of summons to him. If he fails to file the writtenstatement within 30 days, time may be extended by the trial Court, butthe same shall not be later than 90 days from the date of service ofsummons. It is implied that the trial Court has got the power tocondone only 60 days under Order VIII Rule 1 CPC.12. The question then arises us to the mandatory nature ofOrder VIII Rule 1 CPC. Now the same has been settled by the Hon'bleSupreme Court by holding that the period mentioned under Order VIII https://hcservices.ecourts.gov.in/hcservices/ Rule 1 CPC is not mandatory and in appropriate cases, the Court canpermit the defendant to file the written statement even after the 90days period mentioned under Order VIII Rule 1 of CPC.13. Now let me consider the decisions relied on by the learnedcounsel for the petitioner in 2003(3) Law Weekly(cited supra) thisCourt held that Court can receive the written statement filed afterthe stipulated time if it is found that such a defence has to bereceived to render justice, but receiving such written statement isonly an exception and the court should be very careful in exercisingjudicial discretion. 14. In the above case, the plaintiff filed a suit in O.S.No.196of 2002 for declaration that they are the absolute owners of the suitproperty and for permanent injunction. The suit was filed on09.12.2004 for filing the written statement. As the written statementfiled on 09.12.2002, the suit was decreed exparte. To set aside theexparte order an application was filed along with a written statementand other documents. The trial Court refused to set aside theexparte decree and it is also held that the defendant should not beallowed to file the written statement beyond 90 days from the date ofservice of summons. This order was challenged in the above decisionand this Court refused to interfere with the order of the trial Courton the ground that the reasons given by the defendants in that suitfor not filing the written statement earlier were nothing but false.15. As rightly observed by the trial Court the facts of theabove case are totally different from the present case. In thepresent case the exparte order was set aside on 25.03.2003 and thesame was not challenged. Further the trial Court granted time to filethe written statement on 05.06.2003 and again on 02.07.2003. This wasalso not challenged by the plaintiff. It is an admitted fact thatindeed written statement is filed on 02.07.2003 and was accepted bythe trial Court. In such circumstance, I am of the view that theabove judgment of this court is not helpful to the petitioner. 16. In AIR 2007 Supreme Court 1077 (cited supra) the Hon'bleSupreme Court held that any order passed by the Court without thesubject jurisdiction would be Coram "non judice being a nullity andthe same ordinarily should not be given effect to". The abovejudgment is not at all helpful to the petitioner as it cannot be saidthat the trial Court is lacking in jurisdiction over the subjectmatter of the suit.17. In AIR 2007 SC 1574 (cited supra), the Hon'ble Supreme Courtheld that the extension of time sought for by the defendant shouldnot be granted just as a matter of routine and merely for the askingmore time when the period of 90 days is expired. The defendantshould establish that he was not able to file the written statementwithin the time due to circumstances which are exceptional and beyondhis control. In the above decision, the suit was filed in O.S.No.59 https://hcservices.ecourts.gov.in/hcservices/ of 2005 seeking vacant and peaceful possession of the suit premises.The summons were served on 22.03.2005 and the suit was posted forfiling written statement on 20.06.2005. Time was extended to14.07.2005. On that day also, the written statement was not filedand it was filed only on 12.08.2005. This was challenged by theplaintiff, but the same was rejected. The matter was taken to theHigh Court and the High Court dismissed the petition. When the matterwent to Hon'ble Supreme Court, the Hon'ble Supreme Court afterfinding that neither the trial Court nor the High Court indicated anyreason to justify the acceptance of the written statement after theexpiry of the time fixed, set aside the orders and remitted the matterto trial Court for fresh disposal in the light of what has been statedin Kailsah's case reported in 2005(4) SCC 480. This decision is alsonot helpful to the petitioner as he has not challenged the timegranted by the trial Court to file the written statement. Only ifthat was challenged, the Court would have been in a position tofind out the reason for the delay in filing the written statement.Further, in the above judgment of the Hon'ble Supreme Court, the suitwas filed on 24.12.2004, that is, much after the amendments came into effect, whereas in the present CRP, the suit was filed in the year1997 itself. 18. Therefore, I am unable to accept the contention of therevision petitioner that she is entitled to a judgment under OrderVIII Rule 1 of CPC as contended by her in I.A.No.1258 of 2004.19. The reliance placed on by the learned counsel for thepetitioner under Order 8 Rule 9 CPC is not relevant as what iscontemplated under Order VIII Rule 9 CPC is subsequent pleadings,i.e., subsequent to the written statement filed by a defendant.20. In the result, the civil revision petition is devoid ofmerits and the same is dismissed. No costs. Consequently, connectedM.P. is also dismissed. Sd/Asst. Registrar/true copy/Sub Asst.Registrar rrgToThe Additional District Judge,Fast Track Court No.1,Chengalpattu.+1 cc to Mr.C.A.Khabeer, Advocate, SR.No.20009.Ksk (co)krd / 18.6.08 CRP(PD)No.1287 of 2008