Tsewang Narboo vs Tsering Angehok

Mansoor Ahmad Mir, J.—This revision is directed against the interim orders dated 3rd of March, 2005 and 17th of March, 2005 passed

by learned Principal District Judge, Leh in civil suit titled Tsewang Narboo v. Tsering Angehok.

The petitioner has assailed the said orders on the ground that the trial Court had no powers to extend the time fixed by the appellate Court for

filing the written statement.

It is apt to notice the facts of the case.

The plaintiff has filed the above titled Civil suit for, Damages and, Recovery of Possession in the Court of Principal District Judge, Leh. The

learned District Judge, Leh after hearing the parties disposed of the interim injunction application vide order dated 10th April, 2004. The

petitioner/plaintiff assailed the said order by the medium of appeal (CIMA No. 40/2005) before this Court. This Court set aside the said order.

It is profitable to reproduce operative part of the judgment of this Court herein:

In view of these facts I find that the trial Court's order impugned in the present appeal cannot stand. I remand this case to the trial Court for a fresh

adjudication. Before proceedings in the matter the respondents shall file its detailed written statement to the plaint before the trial Court on next

date of hearing. The respondent shall also place, on file along with the written statement all the documents on which it relies. The documents may

be filed in original. The appellant shall also file all the original documents before the trial Court Photostat copies of which have already been placed

by him on record. The trial Court shall hear the parties afresh on the application for grant of interim relief and consider the rival contentions of the

parties in light of the pleas raised in the plaint (or which may be raised in the plaint) and appreciate prima facie the same on the basis of the

documents placed before the Court.

The parties shall appear before the trial Court on 3-3-2005. The respondent shall file the written statement on that date failing which his right to file

the written statement shall be closed by the trial Court and the application for interim relief shall be disposed of as far as practicable within a period

of one month from the date so fixed.

Upon perusal of the trial Court file, it appears that on 3rd of March, 2005, the plaintiff has appeared in person while as none has caused

appearance on behalf of the defendant before the trial Court. The trial Court issued notice to the defendant with the command to file written

statement and posted the case on 17th March, 2005. The parties caused appearance on 17th March, 2005. The learned Counsel for the

defendant sought adjournment for filing written statement and file was posted on 7th April, 2005. It appears that respondent/defendant has filed

written statement on 19th March, 2005.

The petitioner filed this revision petition before this Court on 11th April, 2005.

Heard learned Counsel for the parties.

The bone of contention is whether the trial Court has powers to extend the time fixed by this Court despite of the fact that this Court has

ordered that in default right to file the written statement shall be closed.

It is profitable to reproduce Order 8, Rule 10 CPC herein -

Order 8, Rule 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 Rule 8) 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.)

This provision mandates that if the defendant fails to file written statement, the Court has either to pronounce judgment or has to make such an

order which the Hon'ble Court deems fit. If the Court will not pronounce the judgment, then the plaintiff has to lead evidence and prove his case.

The defendant has every right to cross-examine the witnesses and argue the case.

This Court has directed to close the right to file written statement but has not commanded the trial Court to pronounce the judgment. In terms

of the order of this Court, the lis remains sub judice even if right of filing written statement would have been closed. Thus the trial Court was within

its powers to pass any order in terms of Order 8, Rule 10 CPC, as discussed hereinabove.

As noticed above, the direction passed by this Court is a procedural direction in terms of Order 8, Rule 10 CPC. The Rules of procedure are

not themselves an end but are the means to achieve the ends of the Justice. The procedural law is meant to further the ends of justice and not to

frustrate the same. The procedural law is always subservient to and is in aid to justice. Any interpretation which is against the ends of justice or,

which frustrates the principles of justice, is not to be followed. In order to achieve the purpose, the courts should not succumb to the niceties,

technicalities and mystic maybes.

It is profitable to reproduce Section 148 of CPC herein:

Section 148. Enlargement of time.- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this 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.

While going through this provision of law, one comes to inescapable conclusion that this provision nowhere commands that the same court

should extend the time which has fixed the time frame. I am of the considered view that 'court' includes subordinate court or appellate

court/revisional court.

This point has come up for consideration before the Madras High Court in case titled Abdul Shaker v. Abdul Rahman reported in AIR 1923

Mad 284. Their Lordships have held that if the appellate court has fixed time for doing an act, the original court has jurisdiction and powers to

grant extension of time. It is profitable to reproduce relevant portion of the judgment herein:

The appeal therefore be dismissed with costs. The time for the completion will be extended by this decree for a period of two months. It must be

understood that the original Court still has jurisdiction in this matter and has full powers to deal with any point that may arise including, if necessary,

an application for further time.

This point also came up for consideration before the Andhra Pradesh High Court in the year 1959 and their Lordships have held that trial

Court has the powers to extend the time even though the appellate court has fixed the time. Their Lordships also discussed the scope of Section

148, CPC. It is profitable to reproduce paras 3 and 4 of the said judgment Mareddi Venkata Rami Reddy Vs. Mareddi Adinarayana Reddy and

Others, , herein:

(3) This authority was followed by another Bench of the Madras High Court in the case of Mahommadalli Sahib Vs. Abdul Khadir Saheb, and by

the Allahabad High Court in Someshwar Dayal and Others Vs. Widow of Lalman Shah and Others, .

(4) It would thus appear that, though we had fixed a fresh period in our judgment while disposing of A. S. No. 627 of 1954 the power of the trial

Court is still intact to consider the question of extension in the circumstances as mentioned in the affidavits filed in support of the petition. In these

circumstances, we need not go into the larger question whether it is open to the appellate court to extend further time in the present circumstances.

The Allahabad High Court has held in case Sital Din and Others Vs. Annant Ram , that time given by appellate court can be extended by trial

Courts.

The Apex Court has in case titled Gangadharrao Narayanrao Majumdar Vs. The State of Bombay and Another, , held that the Court is

clothed with ample powers to extend the time and pass such orders in the interests of justice in order to do justice between the parties. Their

Lordships have further held that the Court has powers to extend time even if the Court has passed pre-emptive procedural orders.

The Apex Court in a case titled as Smt. Jodhayan Vs. Babu Ram and Others, , has held that the powers given to the Court u/s 148, CPC are

discretionary and the purpose of the said powers is just to secure the ends of justice in case of necessity. It is profitable to reproduce relevant

portion of the said judgment herein:

...The power to the Court u/s 148 is discretionary and is given for the purpose of securing the ends of justice in case of necessity. In our opinion,

the High Court committed an error in not adverting to, and not exercising its powers u/s 148, CPC and in dismissing the appeal without going to

the merit of the matter.

This Court has also held in case Satinder Subarwal v. Om Prakash reported in 1977 (8) JKLR 50, that trial Court is competent to grant

extension of time while exercising powers u/s 148, CPC even though time is fixed by the appellate Court. It is profitable to reproduce relevant

portion of the said judgment herein:

...secondly the legal position is established that even the trial Court is competent to grant extension in time in exercise of its power u/s 148 of the

C.P.C. In my opinion there is no warrant for the proposition that only the appellate Court could exercise this power and not the trial Court....

As noticed above, the case is at its threshold stage. The written statement stands now filed. The issues are to be framed. If the time would not

have been extended then the right to file the written statement would have been closed and in that eventuality it was the discretion of the Court

either to pronounce the judgment or to ask the plaintiff to prove his case by leading evidence as discussed hereinabove.

In view of the above discussion, I am of the considered view that the trial Court has powers to extend time even though time was fixed by the

appellate Court.

The trial Court was directed to decide the application for ad interim relief within one month from 3rd March, 2005. It appears that trial Court

has not passed any order on the said application. The trial Court is directed to decide the application for grant of ad interim relief within one month

from the date fixed hereinafter before the trial Court. The trial Court shall follow the directions contained in the order dated 14-2-2005 passed by

this Court and shall submit compliance report. In no case, the trial Court shall keep the application for grant of ad interim pending for more than

one month from the said date. The trial Court is also directed to decide the suit expeditiously.

Viewed thus, the revision petition fails and is as such dismissed, accordingly. Send down the record. The parties are directed to cause

appearance before the trial Court on 29th September, 2005.