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Judgment
Challenge in this petition filed under Article 227 of the Constitution of India is to the impugned order dated 07.12.2016 passed in T.S. No.2(T) of 2011 by the Assistant to Deputy Commissioner, Ri Bhoi District, Nongpoh allowing the petition filed by the respondent under Order VIII Rule 10 of the Code of Civil Procedure ("CPC") whereby written statement was declined to be taken on record and directed the suit to proceed for trial.
A few relevant facts necessary for the decision of the controversy involved as narrated in the petition may be noticed.
The plaintiff-respondent claims to be belonging to the Khasi Schedule Tribe Community and permanently residing at Nongmynsong, Shillong, East Khasi Hills District, Meghalaya. According to the plaintiff-respondent, on 12.07.2010 she had purchased land from Smti. Pristila Mynsong by executing a sale deed. She applied for change of mutation of the ownership which had been accorded by the Syiem of Hima Mylliem and land documents were issued in her favour vide letter No.MS/L-I/54/2008-10, Registration No.37, dated Shillong, the 14.09.2010. The plaintiff-respondent got her property registered in the office of Sub-Registrar, Ri-Bhoi District at Nongpoh on 14.10.2010. The Schedule of land has been described in the plaint.
The pleaded case of the plaintiff is that the defendants have encroached into the said landed property and though there was repeated request to vacate it, the defendants did not accede to her request instead claimed the ownership of the suit property. This necessitated the plaintiff-respondent to institute a suit for declaration of right, title, interest and permanent injunction along with Misc. Application under Order XXXIX Rules 1 and 2 read with Section 151 of CPC before the Court of Assistant to Deputy Commissioner, Ri-Bhoi District at Nongpoh. The case was registered as Title Suit No.2(T) of 2011 and the injunction application under Order XXXIX Rules 1 and 2 read with Section 151 CPC was registered as Misc. Case No.2(T) of 2011.
The learned Court of Assistant to Deputy Commissioner (J) on 22.06.2011 passed an ex-parte ad-interim injunction against the defendants-petitioners from entering the suit property and from undertaking any activities pending disposal of the main injunction application and further directed the officer-in-charge, Khanapara to implement the order and issued show cause notice to petitioner No.1 as to why permanent injunction as prayed for should not be granted.
The petitioners-defendants have refuted the claim of the plaintiff-respondent and have elaborately given their version in the revision petition. The defendant-Petitioner No.1 (Meghalaya Infra Tech (P) Ltd.) was incorporated as a private limited company. On and from 25.02.2011, the said company became a limited company and the Registrar of Companies, Shillong had issued a fresh certificate of incorporation w.e.f. 25.02.2011. The defendant-petitioner No.1-M/s Meghalaya Infratech Pvt. Ltd. had undertaken the project for construction of a Five Star Hotel at Khanapara, Ri-Bhoi District. The petitioners-defendants have inter alia strongly pleaded that land measuring 19,525 sq.mts. was transferred to them by way of sale dated 29.10.2009 located at Khanapara from Smti. Shaikordor Rumnong and Shri Rymphang Pohshna for setting up of a Five Star Hotel. Vide another sale deed being No.379 dated 15.06.2010, Smti. Shaikordor Rumnong and Shri Rymphang Pohshna had transferred the plot of land measuring 20,450 to the petitioners with the following boundaries:-
"North - Land of Smti. Shaikordor Rumnong
East - Land of Smti. Jopsimon Phanbuh
South - Land of Sri Phaniram Narlang
West - Land of Sri Madan Rabha"
The claim of the plaintiff-respondent was thus, contested by the defendants-petitioners. Further details of defence of the petitioners-defendants are not being enumerated herein as it is not relevant and essential for the decision of revision petition.
It may be mentioned herein that the title suit was registered on 24.02.2011 and on 03.05.2011 the suit was endorsed to Assistant to Deputy Commissioner, Nongpoh for disposal. Thereafter, no orders had been passed since 03.05.2011 till 06.02.2012 in the main suit. On 07.02.2012, the case was endorsed to another court of Assistant to Deputy Commissioner for disposal. Thereafter on 08.02.2012, the case record was received by the court upon endorsement by Assistant to Deputy Commissioner, Nongpoh fixing 29.02.2012 for appearance/steps. Since then, order passed on 29.03.2012, 26.04.2012, 30.05.2012, 19.07.2012, 31.07.2012, 28.08.2012, again 28.08.2012, 25.09.2012, 30.10.2012 and 06.11.2012 are shown as same order passed in Misc. Case No.2(T) of 2011 relating to interim injunction application filed in the suit. However, on 22.06.2011, the Trial Court had passed an ex-parte injunction order in Misc.Case No.2(T) of 2011. Against the ex-parte injunction order dated 22.06.2011 passed in Misc. Case No.2(T) of 2011 by the Trial Court and non-disposal of the show cause, the petitioners had preferred Civil Revision Petition bearing No.49 of 2013 in the High Court. This Court after hearing learned counsel for the parties vide order dated 04.10.2013 had set aside the ex-parte injunction order dated 22.06.2011 and ordered the parties to maintain status quo of the suit land further directing the Trial Court to decide the injunction matter afresh after appearance of both the parties before the Trial Court on 08.10.2013. On 08.10.2013, both the parties had appeared before the Trial Court and the petitioners had tried to file the written statement but the Trial Court did not accept the same on the ground that it was not filed within 90 days and it could not be filed at a belated stage without showing any reason for not filing the same on time. The respondent/plaintiff in the meantime had filed an application dated 19.08.2013 under Order VIII Rule 10 CPC for passing the judgment and decree on the basis of the plaint as the petitioners-defendants had waived their right to file their written statement. The Trial Court accepted the application filed under Order VIII Rule 10 CPC and did not allow the defendants-petitioners to file the written statement vide order dated 07.12.2016. Hence, this instant petition for quashing the order dated 07.12.2016 passed in T.S. No.2(T) of 2011 by the Assistant to Deputy Commissioner, Ri-Bhoi District, Nongpoh.
Learned counsel for the petitioners, inter alia, submitted that the Trial Court has erred in accepting the application filed by the plaintiff/respondent under Order VIII Rule 10 CPC, whereby the petitioners were denied the opportunity to file the written statement.
Learned counsel referred to various orders passed by the Trial Court to urge that there was no negligence or intentional delay on the part of the petitioners in filing the written statement which was presented to the Trial Court on 08.10.2013. Reliance was placed upon the provisions of Order VIII Rules 1, 9 and 10 of CPC to contend that these provisions are not mandatory but directory in nature as held by the Apex Court. In other words, it was urged that in such circumstances whenever the defendants are able to justify valid cause for non-filing of written statement within the period provided therein, the learned Trial Court shall not deny the opportunity in the extended period thereafter.
On the other hand learned counsel for the respondent/plaintiff submitted that the delay in filing of written statement is due to the negligence on the part of the petitioners as is clear from various orders passed by the learned Trial Court. It was contended that in the facts of the present case, the delay in filing of written statement is attributable to the negligence and intentional delay on the part of the petitioners/defendants.
Accordingly, prayer for dismissal of the revision petition was q2made.
I have heard learned counsel for the parties.
The relevant statutory provisions may be noticed.
Order VIII Rule 1 of the CPC relates to written statement. It requires the defendant to file written statement of his defence within thirty days from the date of service of summons on him. However, proviso added by Code of Civil Procedure (Amendment) Act, 2002 w.e.f. 01.07.2002 extends the time period from thirty days to ninety days on recording sufficient reasons therefor by the Trial Court, where the defendant fails to file the written statement within the period of thirty days from the date of service of summons. The statement of Objects and Reasons for enacting the Code of Civil Procedure (Amendment) Act 2002 with effect from 01.07.2002 behind incorporating Order VIII Rule 1 CPC in the present shape is to curb the mischief on the part of unscrupulous defendants adopting dilatory tactics delaying the disposal of cases. It is to expedite and reduce delay in disposal of the suit. Rule 1 of Order VIII CPC reads thus:-
"WRITTEN STATEMENT, SET-OFF AND COUNTER CLAIM
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."
Under Order VIII Rule 9 CPC inspite of the time limit fixed by Order VIII Rule 1 CPC having expired, the Court is not powerless to permit a written statement being filed if the Court may require such written statement. Rule 9 of Order VIII CPC reads thus:-
"9. Subsequent pleadings.-No pleadings subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.
The purpose of the procedure provided for in Order VIII Rule 10 CPC where a written statement is not filed within time is clearly to expedite the disposal of the suit. Order VIII Rule 10 CPC has been inserted by the Legislature to expedite the process of justice. The court can invoke the provision to curb dilatory tactic, often resorted to by defendants, by not filing the written statement and pronounce the judgment against it. Under Order VIII Rule 10 CPC, the Court need not necessarily pronounce judgment against the defendant who failed to file written statement as required by Order VIII Rule 1 or Rule 9. The Court may still make such other order in relation to the suit as it thinks fit. In case, where a written statement has not been filed by the defendant, the Court should be little more cautions to judge the contents of the plaint and documents on record as being of an unimpeachable character, not requiring any evidence to be led to prove its contents. The provision is in the following terms:-
"10. Procedure when party fails to present written statement called for by Court.-Where any party from whom a written statement is required under rule 1 or 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 and on the pronouncement of such judgment a decree shall be drawn up."
I now proceed to examine various pronouncements on the subject.
In Salem Advocate Bar Association, T.N. v. Union of India: (2005) 6 SCC 344, the Apex Court was considering the provisions of Order VIII Rule 1 CPC and the question whether the Court has any power or jurisdiction to extend the period beyond 90 days. It was concluded that the upper limit of 90 days to file the written statement was directory and the time cannot be extended in routine manner except in exceptionally hard cases. The observations recorded therein reads thus:-
"16. It has been common practice for the parties to take long adjournments for filing written statements. The legislature with a view to curb this practice and to avoid unnecessary delay and adjournments, has provided for the maximum period within which the written statement is required to be filed. The mandatory or directory nature of Order VIII Rule 1 shall have to be determined by having regard to the object sought to be achieved by the amendment. It is, thus, necessary to find out the intention of the legislature. The consequences which may follow and whether the same were intended by the legislature have also to be kept in view.
In Raza Buland Sugar Co. Ltd. v. The Municipal Board, Rampur2: [(1965) 1 SCR 970: AIR 1965 SC 895], a Constitution Bench of this Court held that the question whether a particular provision is mandatory or directory cannot be resolved by laying down any general rule and it would depend upon the facts of each case and for that purpose the object of the statute in making out the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory.
In Sangram Singh v. Election Tribunal Kotah3: [(1995) 2 SCR 1: AIR 1955 SC 425], considering the provisions of the Code dealing with the trial of the suits, it was opined that: (SCR pp.8-9)
"Now 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. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.
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. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle."
(emphasis in original)
In Topline Shoes Ltd. v. Corporation Bank4:[(2002) 6 SCC 33], the question for consideration was whether the State Consumer Disputes Redressal Commission could grant time to the respondent to file reply beyond total period of 45 days in view of Section 13(2) of the Consumer Protection Act, 1986. It was held that the intention to provide time frame to file reply is really made to expedite the hearing of such matters and avoid unnecessary adjournments. It was noticed that no penal consequences had been prescribed if the reply is not filed in the prescribed time. The provision was held to be directory. It was observed that the provision is more by way of procedure to achieve the object of speedy disposal of the case."
The Supreme Court while construing Order VIII Rule 1 CPC drew support from Order VIII Rule 10 CPC for its conclusion in the following terms:-
The use of the word "shall" in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word "shall" is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.
In construing this provision, support can also be had from Order 8 Rule 10 which provides 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, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to the suit as it thinks fit. In the context of the provision, despite use of the word "shall", the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if the written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order 8 Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 Order 8, the court in its discretion would have the power to allow the defendant to file written statement even after expiry of the period of 90 days provided in Order 8 Rule 1. There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to "make such order in relation to the suit as it thinks fit". Clearly, therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. 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 90 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."
The aforesaid view was reiterated by the Apex Court in ATCOM Technologies Limited v. Y.A. Chunawala & Co. & ors: Civil Appeal No(s).4266-4267 of 2018 decided on 07.05.2018 as under:-
"14. It has to be borne in mind that as per the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908, the defendant is obligated to present a written statement of his defence within thirty days from the date of service of summons. Proviso thereto enables the Court to extend the period upto ninety days from the date of service of summons for sufficient reasons. Order VIII Rule 1 of the Code of Civil Procedure, 1908 reads as under:
"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."
This provision has come up for interpretation before this Court in number of cases. No doubt, the words shall not be later than ninety days‟ do not take away the power of the Court to accept written statement beyond that time and it is also held that the nature of the provision is procedural and it is not a part of substantive law. At the same time, this Court has also mandated that time can be extended only in exceptionally hard cases. We would like to reproduce the following discussion from the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, (2005) 6 SCC 344:
"21. ...There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The court has wide power to "make such order in relation to the suit as it thinks fit". Clearly, therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. 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 90 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 Kailash v. Nanhku & ors: (2005) 4 SCC 480, the Supreme Court examining the scope of Order VIII Rule 1 CPC had laid down as under:-
"25. By the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) the text of Order 8, Rule 1 was sought to be substituted in a manner that the power of court to extend the time for filing the written statement was so circumscribed as would not permit the time being extended beyond 30 days from the date of service of summons on the defendant. As is well known, there was stiff resistance from the members of the Bar against enforcing such and similar other provisions sought to be introduced by way of amendment and hence the Amendment Act could not be promptly notified for enforcement. The text of the provision in the present form has been introduced by Code of Civil Procedure (Amendment) Act, 2002 (22 of 2002) with effect from 1-7-2002. The purpose of such like amendments stated in the Statement of Objects and Reasons is "to reduce delay in the disposal of civil cases".
The text of Order 8, Rule 1, as it stands now, reads as under:-
"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."
Three things are clear. Firstly, a careful reading of the language in which Order 8, Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Secondly, the nature of the provision contained in Order 8 Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order 8, Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried.
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 the 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 Bihar10: [(1975) 1 SCC 774], 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."
In State of Punjab v. Shamlal Murari11: [(1976) 1 SCC 719: 1976 SCC (L&S) 118], the Court approved in no unmistakable terms the approach of moderating into wholesome directions what is regarded as mandatory on the principle that: (SCC p.720)
"Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice."
In Ghanshyam Dass v. Dominion of India12: [(1984) 3 SCC 46], the Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to sub-serve and advance the cause of justice rather than to defeat it as all the laws of procedure are based on this principle.
It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of 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."
Learned counsel for the plaintiff-respondent had relied upon M/s R.N. Jadi & Brothers & ors v. Subhashchandra: AIR 2007 SC 2571 to urge that in a given case even a procedural provision could be construed as mandatory and extension of time beyond 90 days was not automatic and that the Court has to record reasons for enlarging the time beyond the time limit fixed by the Code in an appropriate case to take out the rigour of that provision or to mitigate genuine hardship. It was further pleaded that extension of time beyond the statutory limit should be based on a clear satisfaction of the justification for granting such extension so as to encourage the belief in litigants that the provisions of Order VIII Rule 1 CPC have to be adhered to meticulously and it is only in rare and exceptional cases where the breach shall be condoned. Applying these guidelines, the contention was that the present case does not satisfy the test of plausible explanation.
The provision of Order VIII Rule 1 CPC is procedural in nature and, thus, handmaid of justice. Being procedural, the provision has been held to be directory in nature. Where the court finds that there has been an attempt on the part of the defendant to adopt dilatory tactics and to delay the disposal of the suit, the filing of the written statement beyond statutory period is to be denied. The provision cannot be stretched to an extent that the defendant without tendering any plausible and satisfactory explanation for the delay would be held entitled to present the written statement beyond the prescribed limit. On the other hand, a party ordinarily should not be denied the opportunity of participating in the process of justice dispensation. The language of a statute should not be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. Therefore, on cumulative reading of the aforesaid statutory relevant provisions, the inevitable conclusion is that to allow or to deny the defendants to present the written statement after the statutory period, essentially the facts and circumstances of each case are required to be examined. Where the facts leads to the conclusion that the defendants were not negligent or using dilatory tactics, the delay may be condoned whereas, in a reverse situation where there is an attempt on the part of the defendants to thwart the ends of justice by adopting delay gimmicks, accepting the written statement beyond the fixed time should be denied. In other words, The rules of procedure only indicates that such orders as may be necessary for achieving the ends of justice and also to prevent an abuse of the process of the court are required to be passed.
Having analysed the legal position, next step is to examine factual matrix. The record of the case had been called for. Title Suit was registered on 24.02.2011 and was endorsed to the Court of Assistant to Deputy Commissioner, Nongpoh for disposal. The following order was passed:-
"24.02.2011 - Seen the plaint for declaration of right, title, interest and permanent injunction filed by one Margareth Khyriem. Register the same as Title suit case endorsed to Shri P.S. Khakagre MCS Asst. to D.C. for disposal."
Thereafter, the next date was 03.05.2011, when the order passed was as under:-
"03.05.2011 - C.R. put up to my file as TM is on leave. Perused all papers as record. Instant case is endorsed to Shri NAK Syiem, MCS, Asst. & Deputy Commissioner, Nongpoh for disposal."
Since 03.05.2011 to 06.02.2012, no orders have been passed. On 07.02.2012, the case was endorsed to Km. M. Lakiang, MCS, Assistant to Deputy Commissioner for disposal. The Court of Assistant to Deputy Commissioner, Nongpoh issued notice on 08.02.2012 fixing 29.02.2012 for appearance/steps. On 29.02.2012, the following order was passed:-
"29.02.2012 - C.R. put up today. Both parties appeared and represented. Plaintiff directed to supply copies of the plaint to respondent. Fix 29.03.2012 for steps."
Since then, orders were passed on 29.03.2012, 26.04.2012, 30.05.2012, 19.07.2012, 31.07.2012, 28.08.2012 again on 28.08.2012, 25.09.2012, 30.12.2012 and 06.11.2012 wherein it has been shown "same order passed in Misc.Case No.2(T) of 2011". However, the Misc.Case No.2(T) of 2011 was taken up on those days where the following orders were passed.
"29.03.2012 - C.R. put up to me. Petitioner present along with ld. counsel. Opp.Party is represented. Petitioner to supply plaint to O.P. via registered AD. Fix 26.04.2012 for S/C by Ops.
26.04.2012 - C.R. put up today. Both parties are represented. Fix 30/05/2012 for show cause by O.Ps.
30.05.2012 - C.R. put up today. Both parties are represented. Fix 19.07.2012 for filing of show cause by O.P.
19.07.2012 - C.R. put up today. Petitioner present and represented. O.P. absent. Fix 31.07.2012 for filing of S.C. Last chance is given to O.P. to take steps failing which the case shall proceed ex-parte.
31.07.2012 - C.R. put up today. Both parties present. Opp. Party has filed show cause today. Fix 28.08.2012 for hearing.
28.08.2012 - C.R. put up today. Petitioner absent. O.P. present. Re-fix 25.09.2012 for hearing on S/C filed by O.P.
25.09.2012 - C.R. put up today. Petitioner absent. O.P. present. Re-fix 30.10.2012 for hearing on S/C filed by Opp. Party.
30.10.2012 - As ld. T.M. is busy in official works case adjourn. Both parties present. Re-fix 06.11.2012 for S/C filed by Opp. Party.
06.11.2012 - As ld. T.M. is engaged in Election duty. Case adjourn. Issue notice to both parties. Re-fix 06.12.2012 for S/C filed by the Opp. Party."
The main suit thereafter was put up on 13.09.2013 as is apparent from the Trial Court record. However, no effective proceedings took place. In compliance to the High Court order dated 04.10.2013 passed in CRP No.49 of 2013, the case was next fixed before the Trial Court on 08.10.2013. However, the Trial Court on 08.10.2013 directed the defendants to file reply to show cause as to why the written statement has not been filed within the statutory period of 90 days as prescribed under Order VIII Rule 1 CPC as they had duly received summons from the Court and were well aware of the suit. Accordingly, defendants were required to give just and reasonable ground to show cause why their written statement should be entertained inspite of lapses of time prescribed under the law.
The order reads thus:-
"08.10.2013 - CR put up today before this Court on being endorsed to my file for disposal by the Hon‟ble A.D.C. (Judicial), Nongpoh.
Both parties have filed their haziras today along with certified copy of the order dt.4/10/2013 passed by Hon‟ble Mr. Justice S.R. Sen, Meghalaya High Court in CRP No.49/2013, directing this Court to hear both parties on the impugned injunction order dt.22/6/2011 passed in Misc.Case No.2(T)2011 and to decide the matter judiciously within a month from the date of receipt of the certified copy and also directing both the parties to appear today before this Court.
Also seen and perused the case record and on perusal of the same, it is seen that this Title Suit has been registered on 24/2/2011. On 3/5/2011 this instant case is being endorsed to the Court of Asst. to D.C., Nongpoh for disposal. But it is seen that since 3/5/2011 till 6/2/12 no orders have been passed. Again on 7/2/12 this case is endorsed to another Court of Asst. to D.C. for disposal. Thereafter, on 8/2/12 the said Court has duly received the C/R upon endorsement by the Ld.ADC, Nongpoh fixing on 29/3/12, 26/4/12, 30/5/12, 19/7/12, 31/7/12, 28/8/12, again 28/8/12, 25/9/12, 30/10/12 and 6/11/12 respectively are shown as same orders passed in Misc.Case 2(T) 2011.
According to me, the said orders never reflected about the filing of W/S nor was there any direction for the same by Opposite Parties, but is seen that directions were given only for filing of Show Cause by them in Misc.Case 2(T)2011 against the ad-interim injunction order dated 22/6/2011.
More so, on perusal of the record it is seen that 3 (three) petitions were filed,
1) On 4/4/2011 filed by defendants praying enough time for submission of W/s.
2) On 17/6/13 filed by petitioner praying the Court to direct the O.P.s/Defendants to stop construction in the suit land belonging to the petitioner and
3) Petition dt.19/8/2013 filed by the petitioner under O.8 R.10 r/w S.151 CPC, praying the Court to pass judgment and decree on the basis of the plaint as defendants has waived their rights to file W/S.
But, surprisingly I do not see any order passed to that effect, inspite of the fact that the said Court has already seen these abovementioned petitions.
With these observations, the Opposite Parties/Defendants are directed to file a petition to show cause as to why their written statements has not been filed within the statutory period of 90 days as prescribed under Order VIII Rule 1 of the CPC, even though no direction has been made by the Ld.Court, but taking into consideration that the Opposite Parties have duly received summons from the Court, is well aware of this instant case. Hence, I feel that a just and reasonable ground should be given by the OP.s/defendants to show cause as to why their W/S should be entertained, inspite of lapse of time period provided under the law.
Fix 18/10/2013 for filing petition/SC."
The next date fixed was 18.10.2013. It would be necessary to reproduce order passed on 18.10.2013 which reads thus:-
"18.10.2013 - C.R. put up today.
Petitioner and Opposite Parties filed their respective haziras and appeared through their Ld.counsels.
The Ld.counsel for the petitioner apprised the Court that he has filed a petition under O.8 R.10 r/w S.151 CPC dt.19/8/2013, praying the Court to pass judgment and decree on the basis of the plaint as defendants has waived their rights to file W/S. He also submits that the previous Court of the Ld.Assistant to D.C., Nongpoh has already heard his submission on 19/8/2013 itself, but since on that day the Bench Assistant of the said Court is absent, so the C.R. was not placed before the Ld.Court. Hence, she has assured the Ld.counsel for the petitioner to pass necessary orders for the same. But on perusal of the same, no such orders was ever passed or reflected in the order sheet. Therefore, the Ld.counsel aggrieved of the act done by the then Asst. to D.C., has thus prayed this Court for re-hearing on the said petition.
In view of the above, it is seen that the said petition dt.19/8/2013, though heard by the then Asst. to D.C., Nongpoh, but no order has been passed to that effect. Hence, since now that this case has been endorsed to my Court, I feel that the Ld.counsel should be given an opportunity to be re-heard on the petition and Opposite Parties are directed to S/C on the same.
Fix 23/10/2013 for hearing & S/C."
In the application filed under Order VIII Rule 10 CPC by the plaintiff, it has been pleaded that the defendants had sought adjournment from time to time for filing of written statement and last chance to file the written statement was given to the defendants on 19.07.2012 fixing 31.07.2012 for the said purpose. On 31.07.2012, the defendants had filed show cause to Misc.Case No.2(T) of 2011 but deliberately and intentionally not filed written statement with ill motive and intention to frustrate and delay the trial of the suit. However, in the reply to the application under Order VIII Rule 10 CPC, inter alia, the defendants-petitioners claimed that on 29.02.2012, the plaintiff was required to furnish copies of the plaint to the defendants which had not been done. Thereafter, from 29.03.2012 to 06.11.2012, the main title suit was not taken up and it was only on Misc.Case No.2(T) of 2011 proceedings were recorded whereas, the order passed in the main title suit was the same order as in Misc.Case No.2(T) of 2011‟ and from 06.11.2012 till 13.09.2013 no order has been recorded in the main Title Suit. The fact that the copy of the plaint was not supplied in pursuance to the order of the Court dated 29.02.2012 is apparent from perusal of the order dated 29.03.2012 when the Court again had directed the plaintiff to supply the copy of the plaint vide registered A.D. post. No date was fixed for filing of written statement as is apparent from perusal of various orders passed by the Court. The defendants assert that they had appointed Mr. C.M. Adhikari, Advocate for conducting the day-to-day proceedings and were never aware about the manner in which the suit was to proceed and that there existed legal requirement of presenting the written statement in a time bound manner. The misc.case was fixed for filing of show cause to interim injunction application, whereas, no date was fixed for filing of written statement. Thereafter, counsel was changed and new counsel Shri. S.P. Roy, Advocate informed the defendants about the requirement of filing of written statement within time.
A look at the orders passed by the Trial Court clearly shows that there was never any direction about filing of written statement by opposite party-defendant, whereas, directions were given only for filing of show cause by them in Misc.Case No.2(T) of 2011 against the ad-interim injunction application. The main case was never taken up and orders were passed only in Misc.Case No.2(T) of 2011 on 29.03.2012, 26.04.2012, 30.05.2012, 19.07.2012, 31.07.2012, 28.05.2012 again 28.05.2012, 25.09.2012, 30.10.2012 and 06.11.2012. The next order in the main suit is on 13.09.2013. The record shows that a petition had been filed on 04.04.2011 by the defendants-petitioners seeking enough time for filing the written statement with the plea that the summons were received belatedly and due to shortage of time relevant documents could not be arranged for filing of written statement and a lawyer was yet to be engaged for that purpose. Surprisingly, no order had been passed on the petition dated 04.04.2011. The plaintiff also had not raised any objection for not filing the written statement after the expiry of ninety days. The application under Order VIII Rule 10 CPC was filed only on 19.08.2013 by the plaintiff for passing judgment and decree on the basis of the plaint as defendant had waived their right to file the written statement on account of failure on their part to file the written statement within time, whereas, ninety days as per provisions of Order VIII Rule 1 CPC had expired long time back. The file was taken by the Trial Court on 08.10.2013 when the defendants-petitioners had attempted to place the written statement on record.
Examining the plea taken by the plaintiff-respondent in the application dated 19.08.2013 filed under Order VIII Rule 10 CPC, it may be noticed that on 19.07.2012, the last opportunity was granted for filing show cause to the interim injunction application and not written statement in the main title suit. There is no order sheet entry where formally the defendants had sought time to file the written statement to the main suit. No doubt, the plain reading of the provision of Order VIII Rule 1 CPC spells out that the time is to be counted from the date of service of summons and no other date would be relevant. However, as facts exist, there is nothing on record to show as to when the copy of the plaint was ever supplied by the plaintiff to the defendants as without that the service of summons under Order V Rule 2 CPC would be incomplete. The object of enacting Order VIII Rule 1 CPC is to stall delaying tactics on the part of the defendant, whereas, the facts in the present case do not point out such an attempt on the part of the defendants herein. Even otherwise, it appears to be case of mistaken impression on the part of the defendants not to file the written statement within time as never did the Trial Court fixed the case for filing of written statement. Further, the defendants have raised serious dispute on merits as described in the revision petition claiming title over the disputed land on the basis of registered documents, whereas, the plaintiff is also claiming ownership on the strength of registered sale deed. In such circumstances, when the narration of facts does not point out towards delaying tactics on the part of the defendants, it would be travesty of justice to deny opportunity to defend the title suit on merits. In fact, perusal of interlocutory orders reproduced hereinbefore, clearly spells out that on numerous occasions the Court was not held and no effective orders of the proceedings were passed whereas on various other times, the Trial Court was dealing with the interim injunction application. The matter had also travelled to the High Court in CRP No.49 of 2013 which was disposed of on 04.10.2013. It is, thus, concluded that the delay in filing the written statement is not due to any mala fides or deliberate negligence on the part of the defendants-petitioners.
In view of the above, the revision petition is allowed, the impugned order dated 07.12.2016 is set aside and the defendants-petitioners are allowed to place the written statement on record within fifteen days from the date of appearance before the Trial Court.
The original trial court record be returned forthwith for further proceedings in the matter. It is directed that the Trial Court shall make sincere efforts to adjudicate the suit expeditiously in accordance with law.