Mr. Lamartine Bernabe Conceicao Dias and his wife and Others vs Communidade of Cavelossim and State of Goa

N.A. Britto, J.—The Writ Petitioners herein are the second set of Defendants i.e. Defendant Nos. 3 to 7(a) in Civil Suit No. 12/2005, and, in this Writ Petition they have challenged the Order dated 1-7-2006 of the learned District Judge, Margao, by which the objections taken by the plaintiffs for filing the written statements by the said Defendants on 3-4-2006, have been upheld.

The learned District Judge has come to the conclusion that the Defendants could have filed their applications raising objections to the maintainability of the suit on the first returnable date, and file their written statements without prejudice to the disposal of their applications but the Defendants took considerable time and filed the written statements only on 3-4-2006 almost a year after the issue of summons for settlement of issues.

The controversy centers around the substituted provision of Order VIII, Rule 1, C.P.C. which reads as follows:

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.

The Defendants were served with summons for the settlement of issues on 14-3-2005. On 14-6-2005 they filed an application to extend the time to file the W.S. whereupon the Court passed an order that they should file the W.S. within thirty days from the date of service of summons on them. On the same day, the plaintiffs filed an application for amendment which was granted on the next date i.e. 27-6-2005. On 5-7-2005 the Defendants filed again an application seeking time to file W.S. and the Court passed an order to the effect that the W.S. shall be filed within ninety days from the date of receipt of summons.

On the next date i.e. on 9-8-2005, the Defendants filed two applications, one (Exh.D- 18) under Order VII, Rule 11, C.P.C. on the ground that the suit was not maintainable and the other (Exh.D- 19) praying that the application for rejection of the plaint be decided first, and depending on the outcome of the same, they may be allowed to file W.S. The Court only noted on the last application "file". On 25-8-2005 another application was filed for amendment and thereafter the case was adjourned on 29-8-2005, 19-9-2005, 11-10-2005, 14-11-2005, 13-12-2005, 10-1-2006, 16-1-2006, 6-2-2006, 20-2-2006, 6-3-2006, 20-3-2006 and 3-4-2006 for one reason or the other. The roznamas written on 16-1-2006, 6-2-2006, 20-2-2006 and 20-3-2006, interlia, shows that on each of the said occasions the suit was adjourned with roznama written more or less as: "R/Arg on Exhs.12, 18, 20/WS on". Exh.12 was an injunction application. As already stated, the moment the applications D- 18 and D-20 were rejected on 3-4-2006, the W.S. was filed. That is in sum and substance the history of the proceedings which is relevant to dispose off this Writ Petition.

Shri V. Menezes, the learned Counsel appearing on behalf of the Defendants, fairly concedes that the Defendants have no submission to make that because they had filed an application under Order VII, Rule 11, C.P.C. that they would get extension of time. However, Shri Menezes submits that the impugned Order dated 1-7-2006 amounts to reviewing the orders passed every time the suit was adjourned for W.S., to which I have already made a reference herein above. Shri Menezes further submits that the Defendants did not file the W.S. on the basis of the orders passed in the roznamas as the suit was being adjourned for W.S. as well, inasmuch as the plaintiffs had also not taken any objection any time, including an objection on the day the W.S. was filed i.e. on 3-4-2006 but the objection was taken on the subsequent day i.e. 4-4-2006.

On the other hand, Shri M.B. Da Costa, the learned Senior Counsel appearing on behalf of the plaintiff (Respondent No. 1) referring to the provisions of Rule 1, Order VIII, C.P.C. submits that the Defendants can be given time, only if they give reasons which are acceptable to the Court, and unless that is done, no time can be extended. Learned Senior Counsel further submits that the Defendants cannot be allowed to take benefit of the said roznama entries as they were not made consciously by the learned District Judge by recording reasons but were mechanically made without any application of mind to the facts of the case. Learned Senior Counsel has submitted that although the provisions of Order VIII, Rule 1 have been held to be directory, time to file W.S. beyond 90 days can be extended only in hard and exceptional cases and not as a matter of routine. Learned Senior Counsel has placed reliance on several cases.

In the case of Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), the Apex Court has held that the provision of Order 8, Rule 1, providing for the upper limit of 90 days to file written statement is directory, but their Lordships have also made it clear that the order extending time to file W.S. cannot be made in routine(manner). The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of ninety days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8, Rule 1.

In the case of Kailash Vs. Nanhku and Others, the Apex Court has held that although the provisions of Order 8, Rule 1 have been held to be directory, it may not be understood to nullify the entire force and impact, the entire life and vigour, of the said provision. The time framed is to be followed as a rule and departure therefrom would be by way of exception only. The Apex Court observed that the defendant should be vigilant and the Judge trying the case should handle the prayer for adjournment with firmness and the defendant seeking extension of time beyond the limitation may not ordinarily be shown indulgence. A prayer seeking time beyond 90 days for filing the written statement ought to be made in writing. In its judicial discretion exercised on well-settled parameters, the Court may indeed put the defendants on terms including imposition of compensatory costs and may also insist on an affidavit, medical certificate or other documentary evidence(depending on the facts and circumstances of a given case) being annexed with the application seeking extension of time so as to convince the Court that the prayer was founded on grounds which do exist. The Court may impose costs for dual purpose: (i) to deter the defendant from seeking any extension of time just for the asking, and (ii) to compensate the plaintiff for the delay and inconvenience caused to him. However, no straitjacket formula can be laid down except that the observance of time schedule contemplated by Order 8, Rule 1, shall be the rule and departure therefrom an exception, made for satisfactory reasons only.

In Smt. Rani Kusum Vs. Smt. Kanchan Devi and Others, the Apex Court has followed what was stated in Kailash v. Nanhku and Ors. (supra). In R.N. Jadi and Brothers and Others Vs. Subhashchandra, the Apex Court has clarified that the extension of time beyond 90 days was not to be automatic and the Court for reasons to be recorded had to be satisfied that there was sufficient justification for departing from the time limit fixed by Order 8, Rule 1 and the proviso thereto and that 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 cases, will the breach thereof be condoned. The Apex Court further observed as follows:

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 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 cases, 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 v. Sir Alfred McAlphine & Sons that law''s delays 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?

Reverting to the facts of the case, in my opinion, the conclusion arrived at by the learned trial Court cannot be faulted. The submission now made before this Court is not a submission which was urged before the learned trial Court. The Defendants were well aware of the provisions of Order 8, Rule 1, and the need to file an application to grant or extend time to file W.S. and because of that they had filed an application seeking time on 14-6-2005 and they were given 30 days to file W.S. On 27-6-2005, the Defendants were required to file W.S. within the prescribed time, and on 5-7-2005 they were required to file W.S. within 90 days from the date of receipt of summons which the Defendants failed and neglected and waited to file W.S. for the dismissal of their objection taken as regards the maintainability of the suit, till 3-4-2006. The entries in the roznamas, of which the Defendants are seeking to take advantage of, cannot be said to be amounting to review of the earlier orders passed particularly on 5-7-2005 when the Defendants were required to file the W.S. within 90 days. They could have amounted to review only in case there was a proper application for review and conscious consideration and decision on the same. I am entirely in agreement with the submission of learned Senior Counsel that a Defendant seeking extension of time beyond 90 days should invariably make an application in writing, as stated by the Apex Court in Kailash v. Nanhku and Ors. (supra) with reasons and only after consideration of the same that a Court can grant or refuse extension of time.

The submissions now made were not made before the learned trial Court. The submissions cannot be accepted at all, in the light of specific orders passed by the learned trial Court particularly on 5-7-2005. The Defendants were fully aware that they were required to file the W.S. within 90 days. They did not care to comply with the Order dated 5-7-2005 nor seek extension of time.

In the circumstances of the case, therefore, the impugned Order cannot be faulted. Writ Petition dismissed. Rule discharged.