CHIEF MUNICIPAL OFFICER Vs. HEERALAL SINGH

JUDGEMENT

(1.) BY this petition under Article 227 of the constitution of India, the petitioner/defendant No. 2 seeks to challenge the legality and validity of the order dated 15-1-2008 (Annexure-P/1) passed by the District judge, Jashpur Nagar, in civil suit No. 8-A/2007 Heeralal Singh vs. State of Chhattisgarh and Others. The petitioner also seeks a relief that the written statement filed by the petitioner/defendant No. 2 may be taken on record.

(2.) THE indisputable facts, in nutshell, for adjudication of the case, are that the plaintiff/first respondent herein filed a civil suit on 10-11-2006 for declaration of title and possession. Notice was issued to the defendant No. 2/ petitioner on 16-11-2006. On 20-11-2006 counsel of defendant No. 2 (petitioner herein) appeared before the lower Court and thereafter, sought time for filing the written statement time and again on 20-11-2006, 27-11-2006, 4-12-2006, 7-12-2006, 20-12-2006, 3-1-2007, 16-1-2007, 2-2-2007, 15-3-2007, 28-3-2007, 7-4-2007, &7-5-2007. An interim order was also passed on 25-6-2007, in favour of the plaintiff/first respondent. The petitioner/defendant No. 2 sought for time again on 19-7-2007. On 3-10-2007 time was granted on payment of cost of Rs. 50/- to file written statement before the next date of hearing. The matter was listed on 9-10-2007 and on the said date the defendant No. 2 petitioner filed written statement. Thereafter, an application was filed by the plaintiff/first respondent on 17-10-2007 under Order VI Rule 16 of the Code of Civil Procedure 1908 (for short "the CPC") praying that the written statement filed by the defendant No. 2/petitioner may not be taken on record. The District Judge by order dated 15-1-2008 (Annexure-P/1) allowed the application of the plaintiff/first respondent filed under Order VI Rule 16 of the CPC and declined to accept the written statement filed by the defendant No. 2/Petitioner on 9-7-2007. Thus, this petition filed by the petitioner/ defendant No. 2. The question for consideration in this case is as to when time was granted on payment of cost to file written statement and the same was filed within the time granted by the Court on 9-10-2007, whether the District Judge can on a subsequent application filed by the plaintiff/first respondent under Order VI Rule 16 of the CPC, decline to accept the written statement? It was argued by learned counsel for the defendant that filing of written statement is a mandatory provision and the same cannot be extended beyond the maximum period of 90 days. I have heard learned counsel appearing for the rival parties, perused the pleadings and the documents appended thereto.

(3.) IN construing this provision, support can also be had from Order VIII 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 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 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 VIII Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the court in its discretion would have power to allow the defendant to file written statement even after expiry of 90 days provided in Order VIII Rule 1 There is no restriction in Order VIII Rule 10 that after expiry of 90 days, further time cannot be granted. The court has vide power to 'make such order in relation to the suit as it thinks fit' Clearly, Therefore, the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is directory.