The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Oct-2023 19:42:51 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1130 OF 2023 Rukmani Dalai and others Petitioners Mr. Vivekananda Jena, Advocate …. Ramakanta Nayak …. Opp. Party -versus- CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 19.10.2023 1. 1. This matter is taken up through hybrid mode. 2. Order dated 2nd September, 2022 (Annexure-5) passed by learned Civil Judge (Senior Division), Soro in C.S. No.1067 of 2019 is under challenge in this CMP, whereby applications under Order VIII Rule 9 and Order IX Rule 7 CPC filed by the Defendants-Petitioners, have been rejected. 3. Mr. Jena, learned counsel submits that the Defendants in the suit are the Petitioners in this CMP. Due to non-filing of written statement, an order has been passed precluding the Defendants from filing the written statement. However, the Defendants were ignorant about the same and they filed the written statement before commencement of trial. During cross- examination of P.W.1, it came to light that they have been debarred from filing the written statement. As such, they filed two applications one, under Order VIII Rule 9 and another, Order IX Rule 7 CPC on 5th May, 2022 for setting aside the ex parte order and also to accept their written statement. The said applications were rejected vide impugned order under Annexure-5. Page 1 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Oct-2023 19:42:51 // 2 // 4. Mr. Jena, learned counsel further submits that the Petitioners also assail the consequential orders including order dated 10th July, 2023 (although no specific prayer to that effect has been made in the CMP). It is his submission that after passing of the order dated 10th July, 2023, the Defendants had already filed a memo before learned trial Court stating that they will not pray for recalling of P.W.1 in the event, their written statement is accepted. 5. In support of his case, Mr. Jena, learned counsel for the Petitioners relied upon the case of Sanjay Kumar Dey –v- Basanti Dey @ Jena and others, reported in 2023 (Supp.I) OLR 306, wherein this Court discussing the case laws in Smt. Sarbati Devi Goinka –v- Durga Prasad Agarwal, reported in 2009 (I) OLR 48 and M/s. R.N. Jadi and Brothers and others –v- Subhaschandra, reported in 2007 (II) OLR (SC) 498 held as under: “6. This Court in Smt. Sarbati Devi Goinka (supra) relying upon the decision of the Hon’ble Supreme Court in the case of M/sR.N.Jadi and Brothers and others (supra) held as under: As per the provision of Order 8, Rule 1 4. of the Civil Procedure Code the Defendant shall file the written statement within 30 days from the date of service of summons to him and the said period can be extended by the court for the reasons to be recorded in writing but such time can be extended for a period of 90 days from the date of service of summons. This Amendment came into force with effect from 1.7.2002. The stipulation of 90 days for filing the written statement from the date of service of summons is not an iron tight jacket and the jurisdiction of the court either to accept the written statement is not discretionary. The said provision does not take away the power of the Court to accept the written time as statement filed beyond though the Page 2 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Oct-2023 19:42:51 // 3 // provided. The provision contained in Order 8, Rule 1 of the Code is procedural. It is not a, part of the substantive law and the intention of the provision to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the Plaintiffs and the Petitioners approaching the court for quick relief and also to the serious inconvenience of the Court faced with .frequent prayers for adjournments....... All the rules of procedure are the hand maid of justice. The language employed by the draftsman of processual law may be liberal or stringent but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. Reference in this regard may be made to the decision reported in 2007 (II) OLR (SC) 498 (M/s. R.N.Jadi and Brothers and others v. Subhashchandra).” Of course, the ratio decided in Arjun Singh (supra) has not been taken into consideration eitherby the Hon’ble Supreme Court in M/s. R.N.Jadi and Brothers (supra)or inSmt. Sarbati Devi Goinka (supra).But, it that setting aside ex- cannot be brushed aside parteorder and/or acceptance of written statement is procedural law.And the Court, while dealing with such petition(s), its discretion judicially keeping in mind the facts and circumstances of each case.InArjun Singh (supra) also Hon’ble Supreme Court did not put an absolute legal bar in setting aside ex-parteorder after commencement of hearing of the suit.” is expected to exercise It is, therefore, submitted that there is no straightjacket formula not to accept the written statement after commencement of trial. The case of Arjun Singh –v- Mohindra Kumar and others, Page 3 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Oct-2023 19:42:51 // 4 // reported in AIR 1964 SC 993 has also been discussed by this Court in the aforesaid case law. 6. In that view of the matter, Mr. Jena, learned counsel for the Petitioners submits that for substantial justice, the Defendants-Petitioners should be allowed to file written statement. 7. Heard learned counsel for the Petitioners and perused the case record as well as case laws cited. 8. It is apparent from the record that after rejection of petitions under Order VIII Rule 9 and Order IX Rule 7 CPC by order under Annexure-5, the Petitioners had again filed similar petition on 13th September, 2022, which was also rejected. The Petitioners had also filed an application to recall the said order. The said application was also rejected on 10th July, 2023 under Annexure-5. Neither the order passed in the petition dated 13th September, 2022 nor the order 10th July 2023 have been specifically assailed in this CMP. The Petitioners in the CMP pray for setting aside the order dated 2nd September, 2022 and other consequential orders. Orders passed in the petition dated 13th September, 2022 and order dated 10th July, 2023 cannot be treated to be consequential orders of order dated 2nd September, 2022. 9. There is also no explanation, as to why, the Petitioners the order dated 2nd September, 2022 did not challenge immediately. However, it appears from the record that the Petitioners filed repeated petitions before learned trial Court and ultimately filed this CMP. The Petitioners have not made out any exceptional case to accept their written statement after Page 4 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Oct-2023 19:42:51 // 5 // commencement of trial. Thus, the case law in Arjun Singh (supra) applies to the case of the Petitioners in full force. Even if, the application under Order IX Rule 7 CPC is allowed, the Petitioners cannot be relegated to the position before commencement of trial. Thus, their written statement cannot be accepted after commencement of trial. It is, however, submitted that the Petitioners had filed the written statement before commencement of trial. But, there is no material on record to come to a conclusion that they had, in fact, filed an application to accept the written statement before commencement of trial. 10. On perusal of the record, it appears that the Defendants were thoroughly negligent in defending their case before learned trial Court. Thus, they should not be shown any leniency as rightly held by learned trial Court. 11. Accordingly, the CMP being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 5 of 5