- (1.) CHALLENGE in this writ petition is to the orders dated 1st September, 2007, 7th November, 2007 and 4th December, 2007 (Annexure-1, 2 and 3 to the writ petition), whereby the learned trial court gainsaid the defendants no. 2 and 3-petitioners to file the written statement.
(2.) HEARD the learned counsel for the parties and carefully perused the relevant material on record. Learned counsel for the petitioners took me through the order sheets recorded by the learned trial court with effect from 22nd September, 2006 till 7th November, 2007 and canvassed that right from 22nd September, 2006, the respondent-plaintiff had not taken any steps even to file the summons of the petitioners in the court. He further canvassed that on 25th May, 2007, one Smt. Ratan Sharma, Advocate appeared for defendant no.1 and she gave an undertaking to file the powers on behalf of the petitioners-defendants no. 2 and 3 also on the next date of hearing, but till 1st September, 2007 no power was filed by Smt. Ratan Sharma, Advocate and despite there being no service of summons on petitioners-defendants no. 2 and 3 and further having not been filed the powers by Smt. Ratan Sharma, the learned trial court gainsaid the defendants no. 2 and 3 to file the written statement, which order is totally perverse and contrary to the provisions of law. Learned counsel further canvassed that on 7th November, 2007 again one application was filed imploring the court to grant an opportunity to file the written statement of defence, but that application was also dismissed on the ground that since the Court had already denied the defendants no. 2 and 3 to file the written statement, hence no question did arise to grant permission to file the written statement. Learned counsel further contended that on 4th December, 2007 also, the court dismissed their prayer, whereby no permission was granted to file the written statement. Hence, the impugned orders, in the above facts and circumstances of the case, are totally perverse, contrary to material and illegal and thus, deserve to be set-aside. E Converso, learned counsel for the respondents contended that on 7th November, 2007 Smt. Ratan Sharma, Advocate filed powers on behalf of petitioners-defendants no. 2 and 3, which clearly suggests that these petitioners-defendants no. 2 and 3 had already empowered or authorized Smt. Ratan Sharma to file powers on their behalf on 25th May, 2007. Had the petitioners-defendants no. 2 and 3 not authorized Smt. Ratan Sharma to file the powers on their behalf, Smt. Ratan Sharma would not have given an undertaking on their behalf on 25th May, 2007. Learned counsel further defended the impugned orders and stated the same to be just and proper and submitted that they did not warrant any intervention. Having reflected over the submissions made at the bar and carefully scanned the relevant material on record including the impugned orders, it is noticed that Order 8 Rule 1 CPC envisages that the defendant shall submit the written statement of his defence within 30 days from the date of service of summons on him. A bare perusal of the language of order 8 Rule 1 suggests that the defendant is expected and required to file the written statement of his defene within 30 days of the service of summons only but not later than ninety days for the reasons to be recorded by the court. The object behind substituting Order VIII Rule 1 of Civil Procedure Code 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. In the case of Kailash Versus Nanhku and others reported in 2005 (4) SCC 480, the Hon'ble Apex Court observed as under: "the provisions spells out a disability on the defendant: 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. Though the language of the proviso to Rule 1 Order 8 CPC is couched in the negative form, it does not specify any penal consequences flowing from the non-compliance; however, the consequences of non-compliance may be read in by necessary implication. The provision being in the domain of the procedural law and considering the object and purpose behind enacting Rule 1 of Order 8 in the present form and the context in which the provision is placed, it has to be held to be directory and not mandatory. Moreover, under Order 8 Rule 9, in spite of the time limit appointed by Order 8 Rule 1 having expired, the court is not powerless to permit a written statement being filed if the court may require such written statement." The Hon'ble Apex Court has further held that: "however, the fact that Order 8 Rule 1 CPC has been held to be directory may not be misunderstood as nullifying the entire force and impact " the entire life and vigour " of the provision".
(3.) ADVERTING to the facts of the instant case, it is revealed that what to talk of service of summons on petitioners-defendants no. 2 and 3, even the respondent-plaintiff did not endeavour to file their summon notices in the court. Despite repeated reminders by the Court, the respondent-plaintiff did not file the summons of the petitioners in the court. Thereafter on 25th May 2007, when Smt. Ratan Sharma, Advocate appeared on behalf of defendant no. 1, she gave an undertaking to file the powers on behalf of defendants no. 2 and 3 also but till 1st November, 2007 neither service of summons had taken place on the petitioners-defendants no. 2 and 3 nor Smt. Ratan Sharma had filed powers on their behalf. Hence, from no stretch of imagination, it can be said that the order rendered by the learned trial court on 1st September, 2007 with regard to gainsaying defendants no. 2 and 3 to file the written statement of defence was legal, correct and apt. E Converso, the order is found to be totally perverse, contrary to the provisions of law and arbitrary, which needs to be set-aside. So far as other impugned orders dated 7th November, 2007 as also 4th December, 2007 are concerned, they are also related to gainsaying the petitioners-defendants no. 2 and 3 for presenting the written statement of their defence. Hence, these orders also deserve to be set-aside. For the reasons stated above, the writ petition succeeds and the impugned orders dated 1st September, 2007, 7th November, 2007 and 4th December, 2007 stand set-aside. The petitioners-defendants no. 2 and 3 of suit no. 132/2005 are directed to appear before the learned trial court on 19th September, 2011 and file their written statement of defence. Learned trial court is directed to take the written statement of defence, if filed by petitioners-defendants n. 2 and 3, on record and proceed with the trial in accordance with the provisions of law. ;