Ghulam Rasool Bhat vs Ali Mohammad Kadoo

This is a composite petition filed by the petitioner, both under Sections 103 and 104 of the Constitution of Jammu & Kashmir challenging, inter-

alia, order dated 05.06.2015 passed by learned Sub Judge/Special Mobile Magistrate, Anantnag (hereinafter referred to as the ""Trial Court"") in a

suit for Eviction titled Ali Muhammad Kadoo V/s Ghulam Rasool Bhat. Vide order impugned, the trial Court has rejected the application filed by

the petitioner/defendant in the suit seeking permission of the Court to file written statement beyond 90 days and has struck off the defence. The

order impugned has been assailed by the petitioner on the ground that the written statement, in fact, could not be filed by the petitioner within the

stipulated period due to the laxity on the part of the learned Advocate who had been engaged by the petitioner to represent him in the suit and that

the petitioner cannot be penalized for the act of his counsel who had been properly engaged and paid for doing the needful.

I have heard learned counsel for the parties and perused the record.

There is no dispute on facts that the suit was instituted by the respondent against the petitioner before the trial Court on 27.03.2013. The

petitioner caused his appearance before the trial Court on 17.05.2013 through his Power of Attorney/Advocate, Mr. Sajad Ahmed Parray who

sought time to file the written statement. However, on 08.10.2013, an application was moved on behalf of the petitioner seeking condonation of

delay and leave of the trial Court to file the written statement.

From perusal of the application filed, it would transpire that the application was drafted in a most casual manner and this itself lends credence to

the submissions made by the learned counsel for the petitioner that written statement could not be filed within the stipulated period due to sheer

negligence or at least remissness on the part of the learned counsel appearing for the petitioner before the trial Court.

Be that, as it is, the respondent contested the aforesaid application and the learned trial Judge vide order impugned dismissed the application

and struck off the defence. Learned counsel for the petitioner would argue that the petitioner has been made to suffer because of omission on the

part of learned counsel representing the petitioner in the trial Court. He would, however, fairly submit that the application which was moved for

seeking permission of the Court to file written statement after the stipulated period was not well drafted and in any case did not disclose any cause

much less sufficient cause which might have prevented the petitioner from filing the written statement in time. I would not have accepted this

contention of the learned counsel for the petitioner had there been some sincere effort on the part of the learned counsel appearing for the

petitioner before the trial Court to indicate something in the application having semblance with ""reasonable cause."" Learned counsel for the

petitioner is right in submitting that in case the order impugned is allowed to stand and he is deprived of putting up his defence, he would not only

suffer irreparable loss and injury but it would tantamount to serious miscarriage of justice.

Per contra, the learned counsel appearing for the respondent would submit that in view of the settled legal position and keeping in view the

object of amendments carried in the Code of Civil Procedure particularly Order VIII Rule I, unless the defendant demonstrates adequate reasons

for not filing the written statement in time, the extension of time beyond 90 days of the service of the summons cannot be granted automatically.

Learned counsel drew attention of this Court to the application filed by the petitioner in the trial Court.

I have considered the submissions made by the learned counsel for the parties.

True, it is, that the provisions of Order VIII Rule I of the CPC are directory giving discretion to the Courts to extend time in appropriate cases

and after recording satisfaction of justification for grant of extension, yet such discretion to extend the time cannot be used indiscriminately so as to

defeat the object sought to be achieved by the amendment to the CPC. At the same time, in appropriate cases, the trial Court, moreso this Court

cannot be rendered helpless, if in the given facts and circumstances it feels that a serious miscarriage of justice would take place, if the defendant is

not permitted to file the written statement and is rendered defenseless in the trial. Section 151 and Section 148 of the Code of Civil Procedure

confer ample powers on the Court to act ex debito justitiae. Looking to the facts of the case, it is apparent that the written statement could have

been filed by the petitioner by or before 26.07.2013 but the application seeking permission was filed on 08.10.2013 nearly two and a half months

thereafter. The delay in filing application seeking permission to file written statement, thus, cannot be said to be inordinate.

Learned counsel for the parties have relied upon the case law in their support but I find that in none of the judgments relied by the learned

counsel for the respondent which are also taken note of by the trial Court, there is absolute bar for exercise of inherent jurisdiction of the Court to

act ex debito justitiae.

As note above and reiterated, going by the application filed by the petitioner before the trial Court and the averments made therein, perhaps

the learned trial Court could not have passed the order other than the order impugned, yet keeping in view the larger interest of justice and bearing

in mind that nobody should be allowed to succeed on technicalities, this Court deems it a fit case for showing indulgence. At the same time, the

respondent who has been put in the advantageous condition due to the striking of the defence of the petitioner also needs to be adequately

compensated.

In view of the aforesaid analysis, I allow this petition and in the exercise of jurisdiction vested in this Court under Section 104 of the

Constitution of Jammu and Kashmir set aside the order impugned.

For the reasons stated above and in the interest of justice as also to prevent its miscarriage, the petitioner is granted two weeks'' time from

today to file his written statement with a copy in advance to the respondent. The filing of the written statement by the petitioner before the trial

Court would, however be subject to the payment of Rs. 10,000/- as costs to the respondent.

Disposed of.