Mungeshwar The defendants have filed this First Appeal against the ex- Sahoo, J.
parte judgment and decree dated 06.11.2008 passed by the learned Subordinate Judge I, Biharsharif, Nalanda in title suit no.162 of 2004.
(2) The plaintiff-respondent filed the aforesaid title suit for specific performance of contract dated 21.07.2004 alleging that the defendants-appellants were in need of money so, they decided to sell the suit house. The negotiation was finalized on 05.04.2004 for Rs.2,10,000. On the said date, Rs.10,000 was paid and it was agreed that the sale deed shall be executed by 31st October, 2004 after receiving balance consideration amount. Subsequently, the defendants demanded money as they were in dire need and the plaintiff paid Rs.87,000 on 15.04.2004 through Draft No.371965. Again, the plaintiff paid Rs.12,000 through Demand Draft No.766290 on 16.04.2004 and again, the defendants took Rs.1,000 and Rs.10,000 against the grant of receipt. The plaintiff again paid Rs.75,000 through Demand Draft No.756896 on 25.05.2004. As such, the plaintiff had paid in total Rs.1,85,000. The further case is that it was agreed that the defendants shall get house in question vacated from the tenant till July, 2004. Subsequently, the defendants changed their intention to sell the house in question to the plaintiff and they disclosed that they would not sell the house under agreement and promised to return Rs.2,25,000 including Rs.40,000 as compensation over and above the payment of Rs.1,85,000 by 31st October, 2004 and in case defendants failed to return the aforesaid amount, the plaintiff will become owner of the house in question. The defendants neither paid the aforesaid amount nor received the balance consideration money for executing the sale deed. Legal notice was sent to the defendants on 05.11.2004 and lastly, the defendants refused to execute the sale deed through telephone. The plaintiff was always ready and is still ready to perform his part of the agreement.
(3) It appears that after service of notice, when the defendants did not appear, ex-parte hearing started against them on 11.11.2005 and the plaintiff examined five witnesses. In the meantime, the defendants appeared on 26.12.2005 and filed a petition to recall the ex-parte hearing and permit them to contest the case which was allowed on 03.01.2006 on condition of payment of cost of Rs.150. The defendants paid the cost but did not file written statement and remained absent till 11.07.2006. Therefore, the defendants were debarred from filing written statement by order dated 11.07.2006. Subsequently, the defendants again appeared on 30.08.2007 and filed a petition for permission to contest the case and also to file written statement. The said application was rejected on 26.09.2007 and thereafter, the impugned judgment and decree was passed ex-parte.
(4) The learned counsel Mr. R.K.P.Singh appearing on behalf of the appellants assailed the impugned judgment and decree on two grounds. Firstly, the learned counsel submitted that the order dated 26.09.2007 passed by the learned trial court whereby the defendant was refused to participate and file written statement in the case is illegal order which affected the merit of the case and thereby, the defendant has been seriously prejudiced and the judgment passed subsequently is vitiated. The learned counsel further submitted that while rejecting the application of the appellants for permission to file written statement and contest the case, the learned Court below did not consider the fact that the provision contained in Order VIII Rule 1 is a procedural law and is directory in nature and further, the learned Court below gravely erred in considering the previous conduct of the appellants instead of considering the good cause for their non-appearance on the date fixed for hearing.
(5) The learned counsel further submitted that because of the fact that the mother of the appellants who was defendant no.3 was seriously ill and they were residing in Kolkata, the appellants were busy and so, could not come to the Court for filing written statement and as a result of the long illness of the mother, the mother died in July, 2007 and on 30th August, 2007, after performing the "Shradh", immediately, the appellants rushed to the Court and filed the application. The plaintiff was also knowing the fact of death of mother of the appellants and a substitution application was also filed but then, the learned Court below rejected the application which resulted in the impugned judgment causing injustice to the appellants.
(6) Secondly, the learned counsel submitted that even if, judgment has been passed ex-parte then also, the learned Court below has not evaluated the oral as well as documentary evidences and just made an observation that the plaintiff and his witnesses have proved the case that plaintiff was and is always ready to perform his part of the agreement. The learned counsel further submitted that the so called agreement dated 21.07.2004(Exhibit-3) is in fact, a document which was executed as a security for payment of the loan taken by the appellants from the defendants on account of the treatment of their mother who was ill. The learned counsel further submitted that in fact because of the fact that the mother was seriously ill, the appellants were in dire need of the money and they took loan from the defendants which would be evident from the document (Exhibit-3) itself because subsequently, they refused to sell the property to the plaintiff and then, the document was executed wherein it is clearly mentioned that they are not intending to transfer the ancestral property to any other person and agreed to return Rs.2,25,000 within 31st October, 2004 and therefore, this document was executed with primary intention to be the security for returning the amount with the damage and compensation. In such view of the matter, the document cannot be construed as an agreement to sell the suit house and it cannot be specifically enforced against the appellants. The learned counsel further submitted that at paragraph 6 of the said document (Exhibit-3), it is clearly mentioned that in future, if we agree to sell our said property then first opportunity shall be given to the plaintiff which clearly indicates that the document is not an agreement to sell and therefore, the learned Court below could not have decreed the suit for specific performance ex- parte against the appellants and that too, without considering the contents of the documents and its implications and intention of the parties which is mentioned clearly. So far readiness and willingness are concerned, the learned counsel for the appellants submitted that except the statement in the plaint and the oral statement of the witnesses that the plaintiff was and is still ready, there are no other circumstances to show the readiness and willingness of the plaintiff. According to the learned counsel, the readiness and willingness of the plaintiff should be reflected from the conduct of the plaintiff but in this case, in the document itself also, there is no mention as to within which period, the balance consideration amount is to be paid and the document is to be registered and further, at paragraph 6, it is clearly mentioned that in future, if the defendant will sell the property, they will sell only after vacating the suit premises from tenant which clearly indicates the intention of the parties that the appellants were not intending to transfer the property rather the said document was executed as security to refund the amount. In support of his contention on both the grounds, the learned counsel relied upon various decisions and submitted that the impugned judgment and decree are unsustainable in the eye of law.
(7) On the other hand, Mr. V.Nath, the learned counsel appearing on behalf of the respondent so far first point is concerned, submitted that in this case, the defendants were negligent for a long period and they only filed application stating that mother is ill and therefore, there was no special circumstances to extend the time for filing written statement. The learned counsel further submitted that the time specified in Order VIII Rule 1 C.P.C. is to be followed strictly as a rule and the departure there from is by way of exception only, but in the instant case, except the statement that mother is ill, there was nothing before the Court to consider this case as an exception and therefore, rightly rejected the application on 26.09.2007.
(8) So far the second question is concerned, the learned counsel submitted that in Exhibit-3 itself, in the first part, there is a reference of oral agreement to sell the property and subsequently, the mind of the appellants changed and they refused to sell the property and so, the agreement was executed wherein it is clearly mentioned that the defendants shall re-pay the amount of Rs.2,25,000 along with damage and compensation i.e. Rs.1,85,000+Rs.40,000 total Rs.2,25,000 within 31st October, 2004 failing which, the plaintiff will become the owner of the property. The defendants failed to pay the said amount within the said period and therefore, the defendants requested him to receive the balance consideration amount of Rs.25,000 and execute and register the sale deed and notice was also sent but the defendants refused to sell the property. Hence, the learned Court below has rightly found that the plaintiff was always and is still ready to perform his part of the contract. According to the learned counsel, there is no illegality in the impugned judgment and decree and therefore, the First Appeal is liable to be dismissed.
(9) In view of the above rival contentions of the parties, the following points arise for consideration in this appeal: I. "Whether the order dated 26.09.2007 passed by the learned Court below is illegal against the interest of justice causing grave injustice to the appellants and therefore, sustainable in the eye of law or not?" II. "Whether the plaintiff was entitled for a decree for specific performance of Exhibit-3" and "whether the learned Court below has rightly decreed the suit and "whether the ex-parte judgment and decree are sustainable in the eye of law?"
(10) It appears that earlier the case was proceeding ex-parte against the defendant. On 26.12.2005, the appellants appeared and filed an application to recall the ex-parte hearing and permit them to contest the suit which was allowed by terms of order dated 03.01.2006 and the cost of Rs.150 was awarded. The said cost was paid by the appellants but thereafter also, the defendants absented till 11.07.2006. Then, the learned trial court debarred the defendants from filing the written statement on 11.07.2006. From perusal of the order dated 30.08.2007, it appears that on 30.08.2007, an application was filed on behalf of the appellants praying therein to permit them to contest the suit and also accept the written statement filed by them on the ground that the defendant no.3 i.e. the mother of the appellants was ill for a long period and because of the said fact, they were busy and they could not come to the Court because they were residing in Kolkata. In appears that a written statement was also filed on their behalf. It further appears that in the said application, it was specifically mentioned that after long ailment, mother of the appellants died. A rejoinder to the said application was filed by the plaintiff and it was stated that in fact, it is delaying tactics. In such view of the matter, the defendants-appellants were required to show good cause on 11.07.2006, when they were debarred from filing written statement for their non-appearance and non-filing written statement.
(11) The learned counsel for the respondent submitted that in exceptional circumstances only, the Court could have extended the period of filing written statement. Earlier on 03.01.2006, ex-parte order was set aside and the appellants were permitted to contest the suit on payment of cost of Rs.150, but then, they never appeared and filed written statement till 11.07.2006 and therefore, again on 11.07.2006, they were debarred from filing the written statement. There was no good cause before the Court for extending the period for filing written statement and therefore, the Court had no option but to reject the application filed by the appellants.
(12) From perusal of the order dated 26.09.2007, it appears that the learned Court below mainly rejected the prayer of the appellants on the ground that earlier on 03.01.2006, ex-parte hearing order was recalled and subsequently, because the appellants did not file written statement, they were debarred from filing written statement on 11.07.2006 and then, this application has been filed to recall the order for ex-parte hearing and according to the Court below, the defendants have got no right to contest the suit because the conduct of the appellants were negligent and they were given opportunity to file written statement but they failed to file and now, when the plaintiff has examined his all witnesses and got his documents exhibited, therefore, the defendants cannot be given any leniency. From perusal of the said order, it appears that while rejecting the application, the learned Court below instead of considering the cause shown by the appellants was good cause or not on the date when they were debarred from filing written statement, the learned Court below considered the previous conduct of the appellants.
(13) Order VIII Rule 1 C.P.C. reads as follows: "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."
(14) The above provision has been considered several times by the Hon'ble Supreme Court and it has been held by the Hon'ble Supreme Court in the case of Kailash vs. Nanhku and others, (2005)4 Supreme Court Cases 480 at paragraph 28 and 30 as follows: "28. All the rules of procedure are the handmaid 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 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. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar are pertinent:(SCC p.777, paras 5-6)
"The mortality of justice at the hands of law troubles a judge's conscience and points an angry interrogation at the law reformer.
The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable Justice is the goal of jurisprudence-processual, as much as substantive."
30. It is also to be noted that though the power of the court under the proviso appended to Rule 1 Order 8 is circumscribed by the words "shall not be later than ninety days" but the consequences flowing from non-extension of time are not specifically provided for though they may be read in by necessary implication. Merely because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form."
(15) Again, in another decision reported in 2007(4) P.L.J.R. 106, Supreme Court (M/s R.N.Jadi & Brothers & Ors. vs. Subhashchandra), the Hon'ble Supreme Court considering various decisions of the Hon'ble Apex Court including Kailash Case(supra) at paragraph 17 has held as follows:
"17. In the facts and circumstances of the case, the maxim of equity, namely, actus curiae neminem gravabit- an act of court shall prejudice no man, shall be applicable. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia- the law does not compel a man to do what he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. The applicability of the aforesaid maxims has been approved by this Court in Raj Kumar Dey vs. Tarapada Dey[1987(4) SCC 398], Gursharan Singh vs. New Delhi Municipal Committee [1996 (2) SCC 459], Ohammod Gazi vs. State of M.P. and others[2000(4)SCC 342] and Shaikh Salim Haji Abdul Khayumsab vs. Kumar and Ors.[2006(1) SCC 46]."
(16) From the above decisions of the Hon'ble Supreme Court, it appears that the nature of the provision as contained in Order VIII Rule 1 is only a procedural and not a part of substantive law. The purpose is only to curb the mischief of adopting dilatatory tactics in delaying the disposal of cases. The object of legislature is to expedite the hearing and not to deny the opportunity of participating in the process of justice dispensation to a party. The Hon'ble Supreme Court has held that although, the wordings of Order VIII Rule 1 appear to be mandatory character, the provision is directory.
(17) In the present case, it is clearly mentioned that the mother of the appellant was ill and they were residing at Kolkata. In the document (Exhibit-3) also, it is clearly mentioned that the appellants were in dire need of money. In the application filed before the Court on 30.08.2007 also, it was specifically mentioned that after long illness, the mother of the appellants died. This fact was not denied by the plaintiff. Therefore, the question was "whether this point raised by the defendants- appellants was good cause for their non-appearance and filing written statement within the period?"
(18) It may be mentioned here that although, in the order dated 26.09.2007, it is mentioned that the plaintiff has examined all his witnesses and documents have been marked, it appears from perusal of the record that after the said date further witnesses have been examined and the documents have been produced by the plaintiff.
(19) In 1970 B.L.J.R. Page 519(Sukhlal Mahton vs. Amrit Mahton), after considering the provision of Order IX Rule 6 and 7 and Order XVII Rule 2 and 3, this Court has held that where on previous occasion, the defendant did not appear and the case was directed to be heard ex-parte and the ex-parte hearing of the case was adjourned to some other future date and if on the date when the ex-parte hearing is adjourned, the defendant appears before the hearing of the suit is concluded and shows good cause for his non-appearance on the previous date when the suit was directed to be heard ex-parte, the defendant might be allowed to contest the suit, if he satisfies the Court by showing good cause for the same. This rule does not empower the Court to allow the defendant to re-open the matter and contest the suit after it has been heard ex-parte and only judgment has been reserved to be delivered on future date. In the present case, at our hand it is not the case. The plaintiff was still adducing evidences when the defendant appeared and filed the written statement and prayed for recall of the order whereby they were debarred from filing written statement.
(20) In a case reported in 2005(2) P.L.J.R. 609(Mahendra yadav vs. Ratna Devi), this Court held that the illness of defendant's father is sufficient and genuine ground for not filing the written statement within time. However, cost was awarded. In the case of Md. Mostakin Mian vs. Md. Hussain, 2005(2) B.B.C.J. V-216, this Court has held that the written statement filed much after 90 days from the date of appearance and the reason for the delay is that wife of the petitioner was suffering from heart disease can be accepted on payment of cost. In the present case, the delay for filing the written statement was due to long ailment of the defendant no.3 i.e. the mother of the appellants which is evident from the application dated 30.08.2007. The fact of death of mother of appellants was admitted. In such circumstances, the learned Court below should not have rejected the application and should have allowed the appellants to participate in the suit after accepting the written statement already filed as the suit was for specific performance of contract. The plaintiff was praying for discretionary relief from the Court and the suit was not in the nature of general suit. While considering the good cause shown by the appellants, the learned Court below considered the previous conduct of the appellants instead of considering the good cause of the appellants on the date when they were debarred from filing the written statement.
(21) In view of my above discussion, I find that the learned Court below has failed to exercise his jurisdiction vested in it by law by passing the order dated 26.09.2007 and therefore, the order is illegal and unsustainable in the eye of law and because of the said order, grave injustice has been done to the appellants and it vitiated the impugned judgment and decree. The order dated 26.09.2007 is set aside and on this point alone, the impugned judgment and decree are liable to be set aside and the matter is liable to be remanded back for a fresh decision according to law. It is well settled principles of law that Code of Civil Procedure is nothing but an exhaustive compilation-cum-enumeration of the principles of natural justice with reference to a proceeding in a Court of law. The entire object of the Code is to ensure that adjudication is conducted by a Court of law with appropriate opportunity at appropriate stage.
(22) Since I have held above that order dated 26.09.2007 is not sustainable in the eye of law, the matter is required to be remanded back to the Court below for a fresh decision according to law giving the appellants an opportunity of being heard in the matter after accepting the written statement, it will not be proper to decide the point no.2 by me as the same will prejudice the parties because this point relates to the merit of the case which shall be considered by the learned trial court after hearing both the parties.
(23) In the result, this appeal is allowed. The ex-parte impugned judgment and decree are set aside and the matter is remanded back to the Court below for a fresh decision according to law as indicated above. The learned Lower Court shall accept the written statement filed by the appellants on payment of cost of Rs.2000 to the plaintiff- respondent within two months from today in the Court below. Both the parties are present before this Court and therefore, I direct both of them to be present before the Court below after one month from today on which date, the learned trial court shall fix the next date in the case and proceed ahead.