SARBATI DEVI GOINKA Vs. DURGA PRASAD AGARWAL

JUDGEMENT

(1.) INVOKING jurisdiction under Article 227 of the Constitution of India, in this writ petition the petitioner has challenged the order dated 21.1.2008 passed by the learned Civil Judge (Senior Division), Bhawanipatna in Civil Suit No.81 of 2005 rejecting the petition filed by the defendant to accept the written statement which was filed beyond the period of 90 days.

(2.) AS per the pleadings of the plaint, the plaintiffs case is that the present opposite party as plaintiff filed Civil Suit No.81 of 2005 in the Court of learned Civil Judge (Senior Division), Bhawanipatna for partition. The relationship between the defendant -petitioner and the plaintiff -opposite party is sister and brother. According to the plaintiff, both of them jointly purchased the suit land from out of their separate funds and they are the joint owners of the suit land. They jointly made construction over an area of Ac.0.26 decs. for their residence. On 1.3.2005, the plaintiff personally and through his power of attorney holder requested the defendant to effect a partition of the suit land in two equal shares so that the plaintiff would be able to sell his share without causing any inconvenience to the defendant. Since the defendant did not respond, the plaintiff filed the suit. After receiving notice, defendant appeared and applied for time to file written statement. On 18.6.2007 the defendant was set ex parte. Thereafter, the case was posted to 26.6.2007 for ex parte hearing. Thereafter, case was adjourned to some dates as per the plaintiffs prayer and due to engagement of the Court. Before the case was taken up for ex parte hearing, the defendant filed an application under Order 8, Rule 9 of the Civil Procedure Code along with a petition for acceptance of the written statement. In the said petition, it was specifically averred by the defendant that earlier she had filed her written statement which was signed by her son as she had orally authorized her son to file the same. Since the said written statement was not duly verified and signed by the defendant herself, the same was rejected. The present written statement was filed duly signed and verified by the defendant herself. She further explained that the delay in filing the written statement was caused as she had gone to her daughter -in -laws house to attend the function and subsequently she fell ill and was bed -ridden. Therefore, the written statement was not filed in time. The non -filing of the written statement in time was neither intentional nor deliberate. The suit property involves immovable property and in the event the written statement filed by the defendant is not accepted, shall will be highly prejudiced. Therefore, the petitioner prayed to accept the written statement. However, her application was rejected by the trial Court. Hence this writ petition.

(3.) AS per the provision of Order 8, Rule 1 of the Civil Procedure Code the defendant shall file the written statement within 30 days from the date of service of summons to him and the said period can be extended by the Court for the reasons to be recorded in writing but such time can be extended for a period of 90 days from the date of service of summons. This Amendment came into force with effect from 1.7.2002. The stipulation of 90 days for filing the written statement from the date of service of summons is not an iron tight jacket and the jurisdiction of the Court either to accept the written statement is not discretionary. The said provision does not take away the power of the Court to accept the written statement though filed beyond the time as provided. The provision contained in Order 8, Rule 1 of the Code is procedural. It is not a part of the substantive law and the intention of the provision to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the plaintiffs and the petitioners approaching the Court for quick relief and also to the serious inconvenience of the Court faced with frequent prayers for adjournments... All the rules of procedure are the hand maid of justice. The language employed by the draftsman of processual law may be liberal or stringent but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice. Reference in this regard may be made to the decision reported in 2007 (II) OLR (SC) 498 (M/s. R.N.Jadi and Brothers and others v. Subhashchandra).