D.N.PATEL, J. - (1.) THE present interlocutory application has been filed in a disposed of writ petition by the petitioner for extension of time to deposit the cost of Rs.500/ -, on the ground, stated in the application.
(2.) LEARNED counsel for the respondent no.1 is vehemently opposing this prayer on the ground that he has filed Title Suit No. 10 of 2009 before the learned Sub -Judge I, Seraikella for declaration, possession and permanent injunction for restraining the original defendants from demolishing the house. Thus, it is submitted by the learned counsel for the respondent that the present petitioner, who is an original defendant, is in possession of the property, in question, and, therefore, he is not filing his written statement in the Title Suit. The suit was filed on 17.3.2009, wherein, defendant nos. 2, 3 and 4 appeared on 1.9.2009. Thereafter, no written statement was filed within the prescribed time limit and, therefore, an order was passed by the learned trial court on 15th April, 2010, as the present petitioner did not file his written statement, in time. The said order was challenged before this Court in a writ petition being W.P.(C) No. 3384 of 2010, wherein, vide order dated 29th April, 2010, this Court imposed a cost upon the petitioner (original defendant in the Title Suit) of Rs.500/ - and the written statement was permitted to be filed. This cost was to be deposited within a period of fifteen days from the date of receipt of a copy of the order of this Court. It is further submitted by the learned counsel for the respondents that despite the order, passed by this Court dated 29th April, 2011, the cost was not deposited and, therefore, prayer for extension of time to deposit the cost may not be allowed, because the petitioner (original defendant), who is in possession of the property, in question, is avoiding the disposal of Title Suit, filed by respondent no.1. Learned counsel for respondent no.1 has relied upon the following decisions: (a) (2005)4 SCC 480 (Kailash V. Nanhku & ors.); (b) (2005)6 SCC 344 (Salem Advocate Bar Association V. Union of India); (c) (2009)3 SCC 513 (Mohammed Yusuf V. Fail Mohammad & ors.); and (d) (2010)1 SCC 53 ((Manohar Singh V. D.S. Sharma & anr.).
(3.) HAVING heard learned counsels for both the sides and looking to the facts and circumstances of the present case, I see no reason to extend the time to deposit the cost and to permit the present petitioner to file his written statement, mainly for the following reasons: (i) The present petitioner is an original defendant in Title Suit No. 10 of 2009, filed by respondent no.1 before the learned Sub Judge -I, Seraikella, Khersawan, for declaration, possession and permanent injunction, restraining the defendants from demolishing the house, in question. (ii) It appears that the petitioner (original defendant) is in possession of the property, in question. The Title Suit was filed on 17.3.2009, wherein, the written statement was not filed by the defendant (petitioner) within the time limit. However, it was tendered at a much belated stage by the petitioner (original defendant) and, therefore, it was not accepted by the trial court vide order dated 15th April, 2010. (iii) Against the order dated 15th April, 2010, the writ petition being W.P.(C) No. 3384 of 2010 was preferred by the defendant, which was allowed by this Court vide order dated 29th April, 2011 and a cost of Rs.500/ - was imposed upon the petitioner, which was to be deposited within a period of fifteen days from the date of receipt of the order of this Court and on that condition the written statement was permitted to be filed in Title Suit No. 10 of 2009. (iv) It appears that since the petitioner (original defendant) is in possession of the suit property, he has not deposited the cost, imposed by this Court for permitting him to file written statement. However, the present interlocutory application has been preferred on 21st February, 2012, for extension of the time limit, to deposit the cost, so that in a pending suit the defendant can file his written statement. (v) It further appears that though this interlocutory application was filed on 21st February, 2012, since long i.e. from May, 2012 onwards, the petitioner (original defendant) is seeking time and has not proceeded with this interlocutory application. Thus, he is avoiding the filing of written statement, despite the order in his favour, because he is in possession of the property, in question. On several occasions, the matter was listed and after 15th May, 2012 onwards the petitioner has taken time. (vi) Thus, it appears to this Court that the petitioner, who is original petition in Title Suit No. 10 of 2009, is avoiding the court process and is, thereby, avoiding the decision in the Title Suit. (vii) It has been held by Hon'ble Supreme Court in the case of Kailash V. Nanhku and ors., as reported in (2005)4 SCC 480, especially at relevant paragraph no.27 and 46 (v), as under: "27. ............................................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 ....................................... 46. We sum up and briefly state our conclusions as under: xxx xxx (v) Though Order 8 Rule 1 CPC is a part of procedural law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for the asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the court on its being satisfied. Extension of time may be allowed if it is needed to be given for circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case." (viii) It has been held by Hon'ble Supreme Court in the case of Salem Advocate Bar Association V. Union of India, as reported in (2005)6 SCC 344, especially at paragraph no.21, as under: "21. 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." In view of the aforesaid decision, the discretion of the court to extend the time limit to file written statement shall not be so frequently exercised, so as to nullify the period, fixed by Order 8 Rule 1 of the Code of Civil Procedure. Thus, in the facts of the present case, initially the discretion was used in favour of the petitioner (original defendant), but, he has chosen not to deposit the cost and, therefore, he did not file his written statement. By such type of frequent extension of time limit to file written statement, such type of defendants, who are in possession of the property, in question, will go on repeating the same thing, so that their possession may be continued and the suit may not be decided at all. (ix) It has been held by Hon'ble Supreme Court in the case of Mohammed Yusuf V. Fail Mohammad & ors., as reported in (2009)3 SCC 513, especially at paragraph no.11, as under: "11. The matter was yet again considered by a three -Judge Bench of this Court in R.N. Jadi & Bros. V. Subhashchandra P.K. Balasubramanyan, J., who was also a member in Kailash in his concurring judgment stated the law thus: (R.N. Jadi caseSCC p. 428, paras 14 -15) "14. It is true that procedure is the handmaid of justice. The 5 court must always be anxious to do justice and to prevent victories by way of technical knockouts. But how far that concept can be stretched in the context of the amendments brought to the Code and in the light of the mischief that was sought to be averted is a question that has to be seriously considered. I am conscious that I was a party to the decision in 6/5/2014 Page 25 Ranchi Cold Storage Ltd. Versus Bihar State Electricity Board Kailash V. Nanhku which held that the provision was directory and not mandatory. But there could be situations where even a procedural provision could be construed as mandatory, no doubt retaining a power in the court, in an appropriate case, to exercise a jurisdiction to take out the rigour of that provision or to mitigate genuine hardship. It was in that context that in Kailash V. Nanhku it was stated that the extension of time beyond 90 days was not automatic and that the court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from the time -limit fixed by the Code and the power inhering in the court in terms of Section 148 of the Code. Kailash is no authority for receiving written statements, after the expiry of the period permitted by law, in a routine manner. 15. A dispensation that makes Order 8 Rule 1 directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasise that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order 8 Rule 1 must be adhered to and that only in rare and exceptional cases, will the breach thereof will be condoned. Such an approach by courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in courts. The lament of Lord Denning in Allen V. Sir Alfred McAlpine and Sons Ltd. that law's delays have been intolerable and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times - 6 Thus, in view of the aforesaid decision, the Hon'ble High Court's order, allowing the filing of the written statement, was quashed and set aside by adhering to Order 1 Rule 8 of the Code of Civil Procedure and the defendant was not permitted to file his written statement. (x) It has been held by Hon'ble Supreme Court in the case of Manohar Singh V. D. S. Sharma and anr., as reported in (2010)1 SCC 53, especially at paragraph no.9, as under: "9. We may also refer to an incidental issue. When Section 35 -B states that payment of such costs on the date next following the date of the order shall be a condition precedent for further prosecution, it clearly indicates that when the costs are levied, it should be paid on the next date of hearing and if it is not paid, the consequences mentioned therein shall follow. But the said provision will not come in the way of the court, in its discretion in extending the time for such payment, in exercise of its general power to extend time under Section 148 CPC. Having regard to the scheme and object of Section 35 -B, it is needless to say that such extension can be only in exceptional circumstances and by subjecting the defaulting party to further terms. No party can routinely be given extension of time for payment of costs, having regard to the fact that 6/5/2014 Page 26 Ranchi Cold Storage Ltd. Versus Bihar State Electricity Board such costs under Section 35 -B were itself levied for causing delay." In view of the aforesaid decision, even the general power of the civil court under Section 148 of the Code of Civil Procedure to extend the time limit should be exercised only in exceptional circumstances and no party can routinely be given extension of time for payment of costs. 6 Thus, looking to the facts and circumstances of the case, I see no reason to extend the time limit, as the petitioner has chosen not to pay the cost of Rs.500/ - for filing his written statement. The original plaintiff, who is present respondent no.1, has filed a suit for declaration, possession and permanent injunction. The defendants are enjoying the possession, since long, and it appears to this Court that even after the order, passed by this Court dated 29th April, 2011, the original defendant (petitioner) has not deposited the cost. Therefore, I see no reason to modify the order, passed by this Court dated 29th April, 2011 in W.P.(C) No. 3384 of 2010. Hence, there being no substance in this interlocutory application (I.A. No. 684 of 2012), the same is hereby dismissed.;