Poonam Srivastava, J. - (1.) -Heard Sri J. J. Munir, learned counsel for the appellants and Sri S. K. Pundir, advocate for the caveator-respondent.
(2.) THIS is defendant's second appeal arising out of judgment and decree dated 30.4.2007 passed by 11th Additional District Judge, Ghaziabad dismissing Civil Appeal No. 64 of 2005 and affirming the judgment and decree dated 17.3.2005 in Original Suit No. 306 of 2002 for specific performance. The suit was instituted for non-performance of the registered agreement to sell dated 6.1.1998. The appellant No. 2 was impleaded as defendant No. 2 subsequently by order of the Court dated 24.1.2003. Written statement was filed beyond the period of 90 days as prescribed by Civil Procedure Code. It is submitted that service on the defendant-appellants was effected by publication and not by process server or registered post. In the circumstances, the defendant-appellants were not allowed to put forth his defence by filing a written statement. The suit was decreed. Civil Appeal No. 64 of 2005 was preferred in the Court of District Judge, Ghaziabad. The Additional District Judge dismissed the appeal on merits. The submission of the learned counsel for the appellant is that the court below committed manifest error of law in decreeing the suit in absence of the appellants on merit. Order XLI, Rule 16, C.P.C. provides that the appellant shall be heard in support of the appeal and respondent is entitled to advance his argument subsequent thereto. In the event, the appellant is not present, the only option left is that the Court may adjourn the appeal when called for hearing or dismiss the appeal in default. In the circumstances, the substantial question of law which arise in this appeal are : 1. Whether it is open to an appellate court to decide an appeal on merits in the absence of the appellant, in view of the mandatory provisions to the contrary contained in Order XLI, Rule 17, C.P.C.? 2. Whether it is open to an appellate court to hear a respondent, in opposition to the appeal, first and the appellant subsequently in support of the appeal, in violation of the principle of "Right to Begin" contained in Order XLI, Rule 16, C.P.C.? It is also argued by Sri J. J. Munir that the provisions of Order VIII, Rule 1, C.P.C., limited the period for filing written statement is held to be directory and not mandatory. The Apex Court in the case of Shaikh Salim Hazi Abdul Khayumsab v. Kumar and others, AIR 2006 SC 396 : 2006 (1) AWC 529 (SC), ruled that after the amendment in the Civil Procedure Code, Order VIII, Rule 1, casts an obligation on the defendant to file 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 therefore Court's power is not specifically taken away. The nature of the provision contained is procedural and is not a part of the substantive law. It is only because to curb the mischief of unscrupulous defendants adopting dilatory tactics. The object is to expedite the hearing and not to shut out the defence completely. The Apex Court has taken into consideration the circumstances, where the defendant is precluded for the reason and circumstances is controlled and come to a conclusion that merely because a provision of law is couched in a negative language implying mandatory character is not acceptable and, therefore, the court below was liable to permit the defendant taking into consideration the circumstances and explanation tendered by the defendant before mechanically rejecting the written statement on account of the reason that it was not filed within 90 days. Similar view was expressed by the Apex Court in Smt. Rani Kusum v. Smt. Kanchan Devi and others, AIR 2005 SC 3304 : 2005 (4) AWC 3861G. The Apex Court was of the view that though the power under the proviso appended to Rule 1 of Order VIII, C.P.C. is circumscribed by words- 'shall not be later than ninety days' but the consequences flowing from non-extension of time are not specifically provided though they may be read by necessary implication. However, in this case also the period of 90 days could be extended though it would be by way of an exception.
(3.) LEARNED counsel has placed reliance on a decision of the Apex Court on the question of law relating to Order XLI, Rules 16 and 17, C.P.C., in Abdur Rahman and others v. Athifa Begum and others, (1996) 6 SCC 62, where it was held that High Court transgressed its limits in taking into account the relevant aspects of the matter on merit and holding that there was no good ground for interference. The Court sitting in appeal has no option but to dismiss the appeal in absence of the appellant in default, which has admittedly not been done in the instant case. In view of what has been submitted above, I am in agreement with the submission of the counsel for the appellants. The trial court should have taken into consideration the circumstances as to why the written statement was delayed specially when the service was by publication, unless and until the trial court was satisfied that 90 days have lapsed after it came to the knowledge of the defendant about the institution of the suit, he should not have been precluded from filing written statement. Besides the appellate court could not record its finding on merit after hearing the counsel for the plaintiff-respondent alone in absence of the defendant-appellant.;