Back
2019 Supreme(J&K) 543
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
RAJESH BINDAL, J.
Varinder Singh - Petitioner
Versus
Sudesh Kumari - Respondent
CR No. 52 of 2019 (O&M)
Decided On : 15-10-2019
Advocate Appeared:
For the Petitioner: Dinesh Verma.
The main legal point established in the judgment is the mandatory nature of the time limits for filing a written statement as per the amended provisions of the Civil Procedure Code.
Headnote:
Written Statement - Civil Procedure Code - Order V Rule 1, Order VIII Rule 1, Order VIII Rule 10 - The court discussed the provisions of Order V Rule 1, Order VIII Rule 1, and Order VIII Rule 10 of the Civil Procedure Code, emphasizing the mandatory nature of the time limits for filing a written statement and the consequences of failing to do so.
Fact of the Case:
The petitioner/defendant sought to challenge the closure of the right to file a written statement due to the failure of the counsel to file it within the specified time period.
Finding of the Court:
The court found that the right to file a written statement was closed as per the provisions of the Civil Procedure Code, and the petitioner's reliance on a Supreme Court judgment was deemed misconceived due to subsequent amendments in the CPC.
Issues: The main issue was the closure of the right to file a written statement and the applicability of the amended provisions of the Civil Procedure Code.
Ratio Decidendi: The court held that the provisions of Order VIII Rule 1 of the CPC are mandatory, and the consequences of non-compliance, as specified in the amended rules, must be adhered to.
Final Decision: The petition was dismissed based on the court's interpretation of the mandatory nature of the provisions and the consequences of failing to file a written statement within the specified time limits.
JUDGMENT :
1. Challenge in the present petition is to the order dated 15.01.2019 passed by the Learned Ist Additional Munsiff (Forest Magistrate), Jammu, whereby the right of the petitioner/defendant to file written statement was closed and order dated 18.09.2019, vide which the application filed by the petitioner for recalling of the order dated 15.01.2019, was dismissed.
2. Learned counsel for the petitioner submitted that the respondent/plaintiff filed a suit for permanent prohibitory injunction restraining the petitioner/defendant from interfering in any manner, whatsoever into the peaceful possession of the plaintiff or raising any sort of construction, changing the nature of the land or dispossessing the plaintiff from the land measuring 02 Kanals falling under Khasra No. 2380, situated in Revenue village Raipur Domana, Tehsil Jammu now Jammu North, District Jammu. In the aforesaid suit after service of the petitioner, he had put in appearance. Written statement was to be filed. The same was prepared and handed over to the counsel. However, he failed to file when the date of hearing was fixed for the purpose. The petitioner was not at fault as it was the mistake of the counsel that he could not file the same within the time permitted. For the default of the counsel, he should not be made to suffer. Even otherwise, the provisions of Order VIII Rule 1 CPC have been held to be directory. He further submitted that while filing the application for recalling the order, the petitioner had even annexed the written statement alongwith. The same should be taken on record. For the purpose, reference was made to judgment of Hon'ble the Supreme Court in Sandeep Thapar vs. SME Technologies Private Limited, reported as (2014) 2 SCC 302.
3. After hearing learned counsel for the petitioner, I do not find any merit in the present petition. It is the undisputed fact on record, as is evident from the order dated 15.01.2019 passed by the learned court below, whereby the right of the petitioner to file the written statement was closed, that after service the petitioner/defendant had put in appearance on 25.08.2018 and thereafter had been seeking time to file written statement. The same having not been filed, on 15.01.2019, the court passed the following order :
“Perusal of file reveals that written statement has not been filed till date since appearance of defendant through counsel on 25.08.2018. The statutory period is over for filing of written statement, as such right to file written statement is hereby closed. List on 08.03.2019.”
4. In Order V, in Rule 1 CPC, in sub-rule (1), for the second proviso, the following proviso was substituted :
“Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record.”
5. Order VIII Rule 1 CPC, which deals with filing of written statement and Order VIII Rule 10, are reproduced hereunder :
“1. Written statement
The defendant shall within thirty days from the date of service of summons on him present a written statement of his defence:
Provided that where the defendant fails to file the written statement with the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry on one hundred twenty days
