YADAV, J. - (1.) HEARD learned counsel for the parties.
(2.) THE controversy involved in the case in hand is very small in nature though the learned counsel appearing on behalf of the plaintiff-opposite-party tried to establish that an intricate question of law is involved on the basis of decisions reported in AIR 1983 Rajasthan 146, AIR 1979 Patna 78, AIR 1979 Rajasthan 215, AIR 1987 (2) RLR 386 and 1994 (3) Current Civil Cases 482. It appears from the order-sheet dated 21. 4. 94 that learned counsel for the revisionist intended to move an oral application purported to be under Sec. 148, CPC for extension of time for filing written statement. The aforesaid oral application was seriously opposed by the learned counsel appearing on behalf of the plaintiff. The learned trial court took the view that since there was no application in writing and no sufficient reasons were disclosed, therefore, the right to file written statement was denied and 3. 12. 94 was date fixed for evidence of the plaintiff as contemplated under O. VIII, r. 10, CPC which reads thus : - "o. VIII. Written Statement, Set Off and Counter Claim: - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R. 10. Procedure when party fails to present written statement called for by Court. Where any party from whom a written statement is required under R. l or Rule 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. " A close scrutiny of O. VIII r. 10 CPC reveals that after refusing to grant time to the defendant to file written statement, the trial court either would have pronounced the judgment against the defendant or would have passed such order in relation to the suit as it thinks fit. It is admitted that in the present case, the learned trial court did not propose to pronounce the judgment against the defendant and it only fixed 3. 12. 94 for evidence of the plaintiff after refusing to grant further time to the defendant to file written statement. It is also evident from perusal of record that on 3. 12. 94, the defendant filed his written statement along with an application under Sec. 151, CPC. The Rules of procedure are handmaid to advance justice between the parties and not to be used to defeat the ends of justice. It is well to remember that provisions of Civil Procedure Code are meant to advance justice between the parties and also to prevent mis-carriage of justice. The provisions of Civil Procedure Code are not penal in nature for penalising either plaintiff or defendant especially in those circumstances where a aggrieved party can be adequately compensated for his inconvenience by awarding cost. Here in the present case, the written statement has already been filed along with an application under Sec. 151, CPC for accepting the written statement on record. I need not to enter into the ratio decidendi of decisions cited on behalf of the learned counsel appearing on behalf of the plaintiff-opposite party, inasmuch as, the facts of those cases are not applicable in the present case. Recently, in a decision rendered by the Apex Court in the case of Collector, Land Acquisition Anantnag and Another vs. Mst. Katiji and Ors. (1), their lordships ruled thus: - "it must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. "
(3.) LEARNED counsel Mr. R. P. Dave, appearing on behalf of the non-petitioner urged before me that in the case of Collector, Land Acquisition (supra), it is not the ratio of that case but it is obiter dicta. In my humble opinion, even obiter dicta of the Apex Court is to be given highest respect. In my considered opinion, all Civil Courts are expected to make a justice oriented approach. A court of law and justice cannot afford to allow the substantial justice either to escape or to slide on mere technicalities where aggrieved party can be adequately compensated for his inconvenience by awarding costs. In my humble opinion the provisions of O. VIII r. 10, CPC are not designed to trip the right of defendant to file his written statement especially when judgment is not pronounced against him due to his failure to file his written statement on a particular date. Too technical constructions of O. VIII r. 10, CPC is to be avoided, so that, it may be used for the furtherance of justice and fair play rather than to frustrate it. The entire provisions of the Code of Civil Procedure are grounded on principle of natural justice and fair play for plaintiff and defendant both by allowing them to participate in the suit effectively. Ordinarily if written statement is filed by a defendant with promptitude on the next date fixed by the court alongwith an application to accept his written statement on record specially in those cases where court did not pass an order to pronounce judgment against him in such cases acceptance of his written statement on record should always be treated to be a rule and refusal to accept his written statement on record should always be treated to be an exception. The dominant factor which should be kept in view by the Civil Courts while refusing to accept the written statement of the defendant filed on the next date fixed by the court with promptitude; whether the plaintiff can be adequately compensated by awarding cost for inconvenience suffered by him? In such class of cases, the mind of the Civil Courts should not be influenced with earlier adjournments prayed by the defendant for filing written statement and granted after being satisfied with the reasons given by the defendant which prevented him to file the written statement on the dale fixed. ;