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CONSTITUTION OF INDIA, 1950: Articles 226 and 227 – High Court in writ jurisdiction setting aside orders of trial and revisional courts whereby they had rejected defendant’s application under Or.8 r.10 CPC for extending time to file written statement =HELD: Jurisdiction of High Court under Articles 226 and 227 is limited – It could have set aside the orders only on the ground of illegality, irrationality and procedural impropriety – Trial court had assigned sufficient and cogent reasons in support of its orders – High Court erred in setting aside the orders without assigning any reason therefor – Judgment of High Court set aside – Code of Civil Procedure, 1908 – Or. 8, r.10. R.N. Jadi & Brothers and Ors. Vs. Subhashchandra (2007) 6 SCC 420 and M. Srinivasa Prasad & Ors. Vs. The Comptroller & Auditor General of India & Ors. 2007 (5) SCALE 171, relied on. Kailash Vs. Nanhku and Ors. (2005) 4 SCC 480, referred to. Case Law Reference: (2005) 4 SCC 480 referred to para 11 2007 (5) SCALE 171 relied on para 13 (2007) 6 SCC 420 relied on para 13 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7209 of 2008. From the final Judgment and Order dated 20.9.2007 of the High Court of Judicature at Allahabad in Writ Petition No. 45197 of 2007. R.S. Hegde, Chandra Prakash and P.P. Singh for the Appellant. M.P. Shorawala, Jyoti Saxena, Vipin K. Saxena and T.N. Saxena for the Respondents. =, , , 2009(1 )SCALE71 ,

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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7209 OF 2008
(Arising out of S.L.P. (C) No.3311/2008)

Mohammed Yusuf …Appellant

Versus

Faij Mohammad & Ors. …Respondents
O R D E R

Leave granted.
1. This appeal is directed against a judgment and order dated 20.9.1997

passed by a learned Single Judge of the High Court of Judicature at Allahabad

allowing the writ petition filed by the respondents herein questioning the validity of

an order dated 29.8.2007 passed by the learned Additional District Judge, Mathura in

Civil Revision No. 322/2005 affirming the order dated 24.10.2005 passed by the

learned Civil Judge whereby and whereunder while rejecting the application filed by

the appellant herein under Order 8 Rule 10 of the Code of Civil Procedure, a date was

fixed for recording the evidence of the plaintiffs and the application filed by the

respondents herein praying for condoning the delay in filing the written statement

was rejected.
2. The basic fact of the matter is not in dispute.
3. Appellant herein filed a suit for a decree for permanent injunction in the

year 2002. A separate application

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for grant of temporary injunction was also filed. Summons upon the defendants were
served on 6.7.2002. The defendants appeared through their learned advocate on

19.7.2002.

 

4. Appellant filed an application for grant of temporary injunction which was

rejected on 28.1.2004. An appeal was preferred thereagainst which was disposed of by

an order dated 14.5.2004. It is neither in doubt nor in dispute that the defendants-

respondents filed applications for extension of time for filing written statement

number of times. The matter was also adjourned on one ground or the other.

 

5. On or about 31.1.2005, the appellant also filed an application before the

learned trial Judge for pronouncing judgment in terms of Order 8 Rule 10 of the

Code of Civil Procedure, inter alia, on the premise that the defendants-respondents

did not file any written statement. It is on the same date the defendants filed an

application for filing written statement. No application for condonation of delay in

filing the written statement was, however, filed.

 

6. However, on 23.9.2005, as indicated hereinbefore by reason of an order

dated 24.10.2005, while rejecting the said application of the respondent, the trial

Judge allowed the plaintiff to examine his own witnesses in support of his case.

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7. A Revision Petition was filed by the respondents which by reason of an

order dated 29.8.2007 was dismissed by the learned District Judge.

 

8. Being aggrieved by and dissatisfied with the said order, the respondents

filed a Writ Petition which was marked as CMWP No. 45197/2007 before the High
Court. By reason of the impugned judgment, the High Court has allowed the said

Writ Petition, directing:
” Considering the facts and circumstances of the case, this Court is of the
opinion that the petitioner should be permitted to contest the suit on merit.

In view of the aforesaid, the order of the trial court refusing to keep the
written statement on record is set aside. The written statement shall be kept on the
record and the defendant-petitioner shall be permitted to contest the matter on merit
subject to payment of cost of Rs.10,000/-, which shall be deposited by the defendant-
petitioner in favour of the plaintiff by means of a bank draft within two weeks. The
amount so deposited can be withdrawn by the plaintiff. The writ petition is allowed.”
9. Mr. R.S. Hegde, learned counsel appearing on behalf of the appellant

would submit that keeping in view the fact that the summons upon the defendants

were served on 6.7.2002 and no step having been taken to file written statement for a

period of three years and only on 31.5.2005, an application for filing written

statement having been filed, the High Court committed a serious error in passing the

impugned judgment.

10. Learned counsel appearing on behalf of the respondents, on the other hand,

would contend that from a

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perusal of the order-sheet before the trial Court, it would appear that dates after

dates were fixed for filing written statement and, furthermore, having regard to the

fact that the appellant himself preferred an appeal before the learned District Judge

against an order rejecting his application for grant of temporary injunction, the

written statement could not be filed.

 

11. It is urged that the provisions of Order 8 Rule 1 of the Code of Civil

Procedure having been held to be directory in nature by this Court in Kailash Vs.

Nanhku and Ors. – (2005) 4 SCC 480, this Court may not exercise its discretionary
jurisdiction under Article 136 of the Constitution of India.

12. Order 8 Rule 1 of the Code of Civil Procedure reads thus:

” [1. Written statement:- The defendant shall, within thirty days
from the date of service of summons on him, present a written statement of his
defence:

Provided that where the defendant fails to file the written
statement within the said period of thirty days, he shall be allowed to file the same on
such other day, as may be specified by the Court, for reasons to be recorded in
writing, but which shall not be later than ninety days from the date of service of
summons.]
13. Although in view of the terminologies used therein the period of 90 days

prescribed for filing written statement appears to be a mandatory provision, this

Court in Kailash(supra) upon taking into consideration the fact that in a given case

the defendants may face extreme hardship in

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not being able to defend the suit only because he had not filed written statement

within a period of 90 days, opined that the said provision was directory in nature.

However, while so holding this Court in no uncertain terms stated that defendants

may be permitted to file written statement after expiry of period of 90 days only on

exceptional situation. The question came up for consideration before this Court in M.

Srinivasa Prasad & Ors. Vs. The Comptroller & Auditor General of India & Ors. –

2007 (5) SCALE 171, wherein a Division Bench of this Court upon noticing Kailash

(supra) held as under:

” 7. Since neither the trial Court nor the High Court have indicated any
reason to justify the acceptance of the written statement after the expiry of time fixed,
we set aside the orders of the trial Court and that of the High Court. The matter is
remitted to the trial Court to consider the matter afresh in the light of what has been
stated in Kailash’s case(supra). The appeal is allowed to the aforesaid extent with no
order as to costs.”
14. The matter was yet again considered by a three-judge Bench of this Court

in R.N.Jadi & Brothers and Ors. Vs. Subhashchandra – (2007) 6 SCC 420. P.K.
Balasubramanyan J., who was also a member in Kailash(supra) in his concurring

judgment stated the law thus:

” 14. It is true that procedure is the handmaid of justice. The court must
always be anxious to do justice and to prevent victories by way of technical
knockouts. But how far that concept can be stretched in the context of the
amendments brought to the Code and in the light of the mischief that was sought to
be averted is a question that has to be seriously considered. I am conscious that I was
a party to the decision in Kailash Vs. Nanhku which held that the provision was
directory and not mandatory. But there could be situations where even a procedural
provisional could be construed as mandatory, no doubt retaining a power in the
Court, in an appropriate case, to exercise a jurisdiction to
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take out the rigour of that provision or to mitigate genuine hardship. It was in that
contest that in Kailash Vs. Nanhku it was stated that the extension of time beyond 90
days was not automatic and that the court, for reasons to be recorded, had to be
satisfied that there was sufficient justification for departing from the time-limit fixed
by the Code and the power inhering in the court in terms of Section 148 of the Code.
Kailash is no authority for receiving written statement, after the expiry of the period
permitted by law, in a routine manner.

15. A dispensation that makes Order 8 Rule 1 directory, leaving it to the
courts to extend the time indiscriminately would tend to defeat the object sought to be
achieved by the amendments to the Code. It is, therefore, necessary to emphasise that
the grant of extension of time beyond 30 days is not automatic, that it should be
exercised with caution and for adequate reasons and that an extension of time beyond
90 days of the service of summons must be granted only based on a clear satisfaction
of the justification for granting such extension, the court being conscious of the fact
that even the power of the court for extension inhering in Section 148 of the Code, has
also been restricted by the legislature. It would be proper to encourage the belief in
litigants that the imperative of Order 8 Rule 1 must be adhered to and that only in
rare and exceptional case, will the breach thereof will be condoned. Such an approach
by courts alone can carry forward the legislative intent of avoiding delays or at least
in curtailing the delays in the disposal of suits filed in courts. The lament of Lord
Denning in Allen Vs. Sir Alfred McAlpine & Sons that law’s delay have been
intolerable and last so long as to turn justice sour, is true of our legal system as well.
Should that state of affairs continue for all times?”
15. In view of the authoritative pronouncements of this Court, we are of the

opinion that the High Court should not have allowed the writ petition filed by the

respondent, particularly, when both the learned trial judge as also the Revisional

Court had assigned sufficient and cogent reasons in support of their orders.

16. As indicated hereinbefore, the High Court allowed the writ petition and

thereby set aside the orders passed by the
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trial Court as also the Revisional Court without assigning any reason therefor. The

jurisdiction of the High Court under Article 226 and 227 of the Constitution of India

is limited. It could have set aside the orders passed by the learned trial Court and the

Revisional Court only on limited ground, namely, illegality, irrationality and

procedural impropriety. The High Court did not arrive at a finding that there had

been a substantial failure of justice or the orders passed by the trial Court as also by

the Revisional Court contained error apparent on the face of the record warranting

interference by a superior Court in exercise of its supervisory jurisdiction under

Article 227 of the Constitution of India.

17. For the reasons stated above, the impugned judgment of the High Court

cannot be sustained. It is set aside accordingly. The appeal is allowed. In the facts and

circumstances of this case, there shall be no order as to costs.

18. In this view of the matter the respondents would be entitled to withdraw

the sum of Rs.10,000/- deposited by them as costs.
………………….J.
[S.B. SINHA]
…………………J
[ CYRIAC JOSEPH ]

New Delhi,
December 2, 2008.
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