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Srimati Gaud and anr. Vs. Udaya Chandra Patel and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revision No. 745 of 1982
Judge
Reported in1984(II)OLR924
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115, 148 and 151 - Order 8, Rules 1, 9 and 10
AppellantSrimati Gaud and anr.
RespondentUdaya Chandra Patel and ors.
Appellant AdvocateGaneswar Rath, Adv.
Respondent AdvocateS.S. Swain, Adv.
DispositionPetition dismissed
Cases Referred(Binda Prasad v. United Bank of India Ltd. and Ors.).
Excerpt:
.....they replace statutory rules. - 3 in spite of opportunities sranted to him failed to file his written statement. 3 having failed, to show sufficient cause for his failure to file the written statement on the date fixed, the court exercised its jurisdiction illegally and with material irregularity in accepting his written statement especially when it involved reconsideration of its earlier order setting the said opposite party ex parte. these provisions as well as section 151, civil procedure code, vest wide discretion in the trial court to accept the written statement even after the date fixed. (page 8)..next there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned..........is directed against the order dated 22. 9.1982 of the subordinate judge, deogarb, accepting the written statement of opposite party no. 3, lambodar naik [defendant no. 3(a)] who had been set ex parte earlier. a perusal of the order shows that on that date the court accepted some documents filed by the defendants nos. 1 and 2 on condoning the delay, accepted the, written statement filed by defendant no. 3 on consideration of his application, proceeded to examine the witnesses on behalf of defendants and posted the suit to 30. 9. 1982 for argument. in this revision petition only that portion of the order accepting the written statement of opposite party no. 3 is challenged.2. perusal of the order-sheet of the trial court reveals that opposite party no. 3 was set ex parte on 16. 11.1978......
Judgment:

D.P. Mohapatra, J.

1. This revision petition by the plaintiffs in Title Suit No. 68/17 of 1978-80 is directed against the order dated 22. 9.1982 of the Subordinate Judge, Deogarb, accepting the written statement of opposite party No. 3, Lambodar Naik [defendant No. 3(a)] who had been set ex parte earlier. A perusal of the order shows that on that date the Court accepted some documents filed by the defendants Nos. 1 and 2 on condoning the delay, accepted the, written statement filed by defendant No. 3 on consideration of his application, proceeded to examine the witnesses on behalf of defendants and posted the suit to 30. 9. 1982 for argument. In this revision petition only that portion of the order accepting the written statement of opposite party No. 3 is challenged.

2. Perusal of the order-sheet of the trial Court reveals that opposite party No. 3 was set ex parte on 16. 11.1978. Thereafter the suit was dismissed for default of the plaintiffs, several times and was restored to file on allowing their applications . under Order 9, Rule 9, Civil Procedure Code in Misc. Cases Nos. 35/80, 35/81 and 7/82. Opposite party No. 3 in spite of opportunities Sranted to him failed to file his written statement.

Recording of evidence in the suit commenced on 15. 9. 1982. On 16. 9. 1982 the evidence on the side of the plaintiffs was closed and the suit was posted to 18.9. 1982 for examination of the witnesses of defendants. On 20th of September, 1982 examination of witnesses on behalf of the defendants commenced and D. W. 1 was examined. On 21. 9. 1982 several witnesses were examined on If behalf of the defendants of whom Lambodar Naik, defendant No.3 was examined, as D.W.4. Thus, it is clear that opposite party No. 3 participated in the suit and was examined as a witness even in the absence of his written statement.

3. The impugned order is challenged mainly on the ground that the opposite party No. 3 having failed, to show sufficient cause for his failure to file the written statement on the date fixed, the Court exercised its jurisdiction illegally and with material Irregularity in accepting his written statement especially when it involved reconsideration of its earlier order setting the said opposite party ex parte.

4. The questions that arise for consideration are Whether the trial Court exercised jurisdiction illegally or with material irregularity in accepting the written statement of opposite party No. 3 (defendant No. 3) and whether the impugned order is available to be interfered with by this Court in exercise of its revisional jurisdiction ?'

Section 148, Civil Procedure Code, provides that where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by the Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. Order 8, Rule 9, Civil Procedure Code provides inter alia that the Court may at any time require a written statement or additional statement from any of the parties and fix a time for presenting the same. Rule 10 states 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, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit. These provisions as well as Section 151, Civil Procedure Code, vest wide discretion in the trial Court to accept the written statement even after the date fixed. for the purpose. Once this position is accepted it cannot be said that the Court below in accepting the written statement of opposite party No. 3 exercised the jurisdiction illegally or with material irregularity. It is pertinent to note here that no period of limitation had been prescribed under these provisions for filing of a written statement by the defendants. It could not be said, therefore, that the delay on the part of the defendants in filing the written statement created any right in the plaintiffs to object to the late filing of the written statement on the ground of limitation. The rule as to the exercise of such discretion has been laid down by the Supreme Court in the case of Sangram Singh v. Election Tribunal (A. I. R. 1955 S. C. 425 ) in the following terms. :

'A code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends : not a penal enactment for punishment and penalties, not a thing designed to trip people up. (Page 8)...Next there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. (Page 9)...But broadly speaking, after all the various factors have been taken into consideration 'and carefully weighed, the endeavour should be to avoid snap decisions and to afford litigants a real opportunity of fighting out their cases fairly and squarely. Costs will be adequate compensation in many cases and in others the Court has almost unlimited discretion about the terms it can impose provided always the discretion is judicially exercised and is not arbitrary, (Page 16)...The general rule founded on principles of natural justice; that proceedings in a Court of justice should not be conducted behind the back, of a party in the absence of an express provision, to that effect is no less compelling. (Page-17) ...If these considerations are to weigh, then surely the sounder rule is to leave the Court with an unfettered discretion so that it can take every circumstance into consideration and do what seems best suited to meet the ends of justice in the case before it. (Page-19).'

It is beyond controversy that the defendants can participate in the defence even if he is not allowed to file a written statement and this position militates against a strict construction of the necessity of a good cause which the defendant has to show before he is allowed to file a written statement. It would be a very unsatisfactory method of trial of the suit if the defendant is allowed to argue his defence but. is not allowed to file a written statement or even if he is allowed to point out the defeats in the plaintiff's case, he is not allowed to plead his own care. Neither Order 8, Rule 10 nor Section 151, Civil Procedure Code, refers to the necessity of any good cause being shown by the defendant before he is allowed to file the written statement late. This view finds support from the decisions reported in A. I. R. 1974 Delhi 35 (Sada Ram v. Delhi Development Authority ), A. I. R. 1975 Patna 24 (Kali Pada Sharma v. Surendra Nath Mahtha and Anr.), A. I. R. 1978 M. P. 39 [Mathew Elenjical and Anr. v. The Nagpur Roman Catholic Diocesan Corporation (P) Ltd.) and A. I. R. 1961 Patna 152 (Binda Prasad v. United Bank of India Ltd. and Ors.).

In view of the settled position of law, the contention raised on behalf of the petitioners questioning exercise of jurisdiction by the trial Court while passing the impugned order is without any force.

5. Now coming to the second question it is well settled that the order accepting the written statement of opposite party No. 3 is of a procedural nature but does not affect the right of the petitioners in any manner. However, the petitioners would claim to have an advantage during the trial of the suit if the opposite party No. 3 was not allowed to file his written statement, but that is not a tight of the petitioners. Further a fair and complete trial of the suit is necessary in the interest of justice. Thus, the impugned order does not cause any prejudice to the petitioners far less causing any failure of justice. As such the requirements of Section 115, Civil Procedure Cole, to attract the revisional jurisdiction of this Court, are not satisfied in the present case.

6. Accordingly, the revision petition is devoid of merit and the same is dismissed, but in the circumstances of the case without any order for costs.


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