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IN THE HIGH COURT OF JHARKHAND, RANCHI
SANJAY KUMAR DWIVEDI, J.
Binita Devi, daughter of Kalu Baraik and wife of Krishna Baraik - Petitioner
Versus
Smt. Bina Mahli, wife of Shri Ganesh Mahli and Ors. – Respondents
C.M.P. No. 92 of 2024
Decided On : 25-02-2025
(A) Constitution of India - Article 227 - Order 8 Rule 1 - Quashing of order - Petition filed for quashing the order debarring the defendant from filing a written statement in a specific performance suit - Court emphasized that the provisions are directory, allowing opportunity for both parties. (Paras 4, 7)
(B) Specific Performance - The court reiterated the importance of allowing both parties a fair chance to present their case in a dispute to attain finality. (Paras 6, 7)
Facts of the case:
The petitioner, a defendant, was debarred from filing a written statement in a suit for specific performance after receiving summons and requesting a copy of the plaint.
Findings of Court:
The court found the order debarring the defendant from filing the written statement to be improper, allowing the defendant to file the written statement within four weeks.
Issues: The main issue was whether the order debarring the defendant from filing a written statement was justified given the circumstances of the case.
Ratio Decidendi: The court ruled that Order 8 Rule 1 is directory, not mandatory, and emphasized the need for both parties to have an opportunity to present their cases.
Result: Petition allowed.
JUDGMENT :
SANJAY KUMAR DWIVEDI, J.
Heard learned counsel appearing for the petitioner, learned counsel appearing for the opposite party No.1 and learned counsel appearing for the opposite party No.3, who is State.
2. It has been pointed out that the opposite party No.2 is a proforma opposite party.
3. This petition has been filed under Article 227 of the Constitution of India for quashing of the order dated 10.10.2023 passed by learned Judicial Magistrate-XIX in Original Suit No.1500 of 2019.
4. Mr. Kundan Kr. Ambastha, learned counsel appearing for the petitioner submits that the petitioner is the defendant in the suit being Original Suit No.152 of 2018/New Filing No.1500 of 2019 which was instituted by the plaintiff for a decree of specific performance of agreement dated 09.11.2010 executed by defendant in favour of the plaintiff with respect to the suit land and defendant is directed to execute and get registered deed of sale in favour of the plaintiff after receiving of Rs.1,60,000/- only within time to be fixed by the Court and the prayer is made for direction to execute the sale deed. He submits that the said suit was instituted in 2019 and summon was received by the defendant on 04.04.2022. He submits that the petitioner has appeared before the learned Court on 12.07.2022 and thereafter filed an application to supply the copy of the plaint so that the written statement may be filed. In the meantime, by order dated 10.10.2023 the petitioner has been debarred to file written statement. He submits that Order 8 Rule 1 is directory not mandatory as has been held by Hon’ble Supreme Court in the case of Kailash versus Nanhku and Ors. reported in (2005) 4 SCC 480. He submits that the intention was not there to unnecessary delay the matter and this may kindly be allowed. On this ground, he submits that the impugned order may kindly be set aside.
5. Mr. Vishal Kumar Tiwary, learned counsel appearing for the opposite party No.1 opposes the prayer on the ground that the summon was already received by the defendant on 04.04.2022 and the appearance has been made before the learned Court on 12.07.2022 and till the order dated 10.10.2023 the written statement was not filed. He submits in view of that there is no illegality in the impugned order.
6. It is an admitted position that the suit has been instituted by the plaintiff for specific performance in which the summon has been issued and the petitioner/defendant has received summon on 04.04.2022 and appearance was made on 12.07.2022 and the petition was filed for supplying the copy of the plaint and it was pointed out that the said plaint copy was not supplied and the petitioner has been debarred by way of filing the written statement by order dated 10.10.2023.
7. In view of the judgment of Kailash versus Nanhku and Ors. (supra) the said provision under Order 8 Rule 1 is directory not mandatory and the suit is there that requires to be decided after providing opportunity to both the sides, so that the finality in the dispute may attained and in view of that the impugned order dated 10.10.2023 is hereby set aside.
8. The petitioner is directed to file the written statement before the learned Court within four weeks from today and that will be subject to cost of Rs.5,000/- to be paid to the plaintiff before the learned trial court at the time of filing of the written statement.
9. This petition is allowed in above terms and disposed of.
The provisions of Order 8 Rule 1 regarding filing written statements are directory, not mandatory, ensuring fair opportunity for both parties in legal proceedings.
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