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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
Sanjay Dhar, J.
Chaman Lal son of late Sh. Pallu Ram - Appellant
Vs.
Sh. Mohd Sharief son of late Sh. Roshan Din - Respondent
CM(M) No. 72 of 2023
Decided On : 03-05-2024
CPC - Civil Procedure - Order 8 Rule 1 - Article 227 of the Constitution
Fact of the Case:
The petitioner filed a suit seeking declaration that certain sale deeds and an order were null and void. The respondents filed written statements after the expiry of 120 days from the service of summons.
Finding of the Court:
The court found that the written statement of defendant No.1 was filed within the stipulated period after excluding the period affected by the Covid-19 pandemic. The court also held that the petitioner's concession to allow defendant No.2 to file the written statement after the stipulated period was valid and binding.
Issues: The issues revolved around the timeliness of the written statements filed by the defendants and the validity of the petitioner's concession to allow the filing of the written statement by defendant No.2 after the stipulated period.
Ratio Decidendi: The court applied the provisions of Order 8 Rule 1 of CPC and considered the impact of the Covid-19 pandemic on the computation of the stipulated period for filing written statements. The court also emphasized that a statutory right can be waived, and the petitioner's concession was valid.
Final Decision: The court dismissed the petition, stating that there was no patent perversity or gross illegality in the impugned orders passed by the trial Court.
Based on the provided legal document, the key points are as follows:
The court emphasized that the stipulated period for filing written statements can be impacted by external factors such as the Covid-19 pandemic, and in this case, the period was appropriately excluded in accordance with directions issued by the Supreme Court (!) (!) (!) (!) (!) .
The court held that the filing of written statements by the defendants after the expiry of 120 days from the date of service of summons does not automatically result in forfeiture of their right to defend, especially when the delay is excused due to extraordinary circumstances like the pandemic (!) (!) .
The court recognized that a statutory right, such as the right to file a written statement under Order 8 Rule 1 of CPC, can be waived by a party’s conduct or concession, which was validly done in this case when the plaintiff’s counsel expressed no objection to the late filing (!) (!) .
The court found that the concession made by the plaintiff’s counsel was a conscious and informed decision, and therefore, the court was bound to accept the written statement filed by defendant No.2, as the right to object was waived (!) (!) .
The court rejected the argument that the pandemic did not impact defendant No.1’s ability to file within the period, noting that there was no evidence that the pandemic conditions did not prevent interaction with counsel, and thus, the extension was justified (!) (!) (!) (!) .
The court concluded that there was no patent perversity or illegality in the orders passed by the trial court, and therefore, the petition under Article 227 challenging those orders was dismissed (!) .
The court clarified that interim directions issued earlier, which excluded certain periods from limitation calculations, remain in effect, and that the filing of the written statement by defendant No.1 was within the extended period (!) .
Overall, the judgment underscores that procedural delays caused by extraordinary circumstances can be excused, and that conduct or concessions by parties can lead to waivers of statutory rights, provided they are made consciously and with awareness of their implications.
JUDGMENT :
1. The petitioner has filed the instant petition under Article 227 of the Constitution challenging orders dated 28.05.2022 and 31.10.2022 passed by the learned Sub Judge (Municipal Magistrate, Jammu [‘trial Court’ for short] whereby the written statements filed by the respondents have been taken on record.
2. Heard and considered.
3. It appears that the petitioner/plaintiff has filed a suit seeking a declaration that sale deeds dated 31.01.2009 and 25.02.2009 executed by wife of respondent No.1/defendant No.1 in favour of respondent No.2/defendant No.2 in respect of certain lands situated at village Mehmoodpur, Tehsil Bishnah are null, void and ineffective. A further declaration that order No. TB/OQ/2021-22/317-19 dated 16.07.2021 passed by Tehsildar, Bishnah is null and void, has also been sought. The petitioner/plaintiff has further sought a permanent prohibitory injunction restraining the respondents/defendants from interfering in the suit land.
4. The record of the trial Court reveals that the suit was presented on 18.09.2021 and summons were directed to be issued to the respondents/defendants on the said date. It seems that a caveat petition was filed by the counsel on behalf of respondent/defendant No.2. Since, the counsel for defendant No.2 was out of station, as such, notice could not be served upon him. The learned trial Court vide order dated 24.09.2021 passed an interim order directing the parties to maintain status quo on spot. Minutes of the proceedings of the trial Court reveal that on 11.11.2021, Advocate Salil Gupta appeared on behalf of defendant No.2 and sought time to file written statement and on 16.12.2021, Advocate Kamal Saini filed a Vakaltanama on behalf of defendant No.2 and sought time to file written statement, however, no written statement was filed by defendant No.2.
5. On 12.05.2022, the defendants were given last opportunity to file the written statement. On 28.05.2022, defendant No.1 filed his written statement and the same was taken on record. However, defendant No.2 did not file any written statement. Minutes of the proceedings further show that on 30.09.2022 counsel for defendant No.2 filed written statement, however, an objection was raised by the counsel for the petitioner/plaintiff that the same is time barred and cannot be taken on record. The case was adjourned to 31.10.2022 for advancing arguments on this issue.
6. On 31.10.2022, upon a concession made by learned counsel for the petitioner/plaintiff, written statement filed by defendant No.2 was taken on record subject to payment of costs of Rs.2000/- and the case was adjourned to 09.01.2023. On 09.01.2023, defendant No.2 was not present and the case was adjourned to 24.02.2023, on which date, the learned Presiding Officer was not available. On 24.03.2023, counsel for defendant No.2 offered to pay costs, but the counsel for the petitioner/plaintiff refused to accept the same and submitted that he has challenged order dated 31.10.2022 before the High Court.
7. The petitioner/plaintiff has challenged the impugned orders dated 28.05.2022 and 31.10.2022 passed by the learned trial Court on the ground that the written statements have been filed by both the defendants after the expiry of 120 days of their service of summons, therefore, in terms of Order 8 Rule 1 of CPC, they have forfeited their right to file the written statement. Thus, it was not open to the trial Court to allow the written statements to be taken on record. It has been contended that the provisions contained in Order 8 Rule 1 of CPC, as applicable to the Union Territory of Jammu & Kashmir, are mandatory in nature and even a concession on the part of counsel for the petitioner/plaintiff would not vest power with the Court to accept the written statement of defendant No.2 who has filed his written statement after the expiry of 120 days from the date of service of summons.
8. Learned counsel appearing for the respondents/defendants, on the other hand, have contended that so
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