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IN THE HIGH COURT OF ALLAHABAD
Manoj Kumar Gupta, J.
Atul Pandey - Petitioner
Versus
Ms. Shaily Bajpai And Another - Respondents
Matters Under Article 227 No. - 4574 of 2019
Decided On : 13-11-2019
Written Statement - Guardian and Wards Act - Order 8 Rule 1 CPC, Section 25 of the Guardian and Wards Act - Order 8 Rule 1 CPC, Section 16 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 - Order 8 Rule 1 CPC, Section 25 of the Guardian and Wards Act - The court discussed the provisions of Order 8 Rule 1 CPC and Section 25 of the Guardian and Wards Act, emphasizing the discretionary power of the court to condone delay in filing written statements, the need to advance the cause of justice, and the exceptional circumstances under which the court can exercise its discretion in favor of condoning the delay. The court also highlighted the distinction between commercial disputes and ordinary civil cases in relation to the time limit for filing written statements.
Fact of the Case:
The petitioner sought custody of his minor son from the respondent, who had filed a written statement after a significant delay. The trial court accepted the written statement, leading to the petitioner filing a petition against this decision.
Finding of the Court:
The court found that the delay in filing the written statement was due to exceptional circumstances, such as mental stress and trauma experienced by the respondent, and the need to promote justice and prevent its miscarriage. The court directed the trial court to ensure expeditious proceedings, especially considering the dispute's nature involving the custody of a minor child.
Issues: Delay in filing the written statement, discretion of the court to condone the delay, and the need for expeditious proceedings in cases involving the custody of a minor child.
Ratio Decidendi: The court can exercise its discretion to condone the delay in filing written statements, especially in exceptional circumstances beyond the control of the party, to advance the cause of justice. The provisions of Order 8 Rule 1 CPC and Section 25 of the Guardian and Wards Act should be interpreted to promote justice and prevent its miscarriage.
Final Decision: The petition was disposed of with a direction to the trial court to ensure expeditious proceedings in the case.
JUDGMENT :
1. Notice was issued to the opposite parties but they have not appeared personally nor through counsel. Office report dated 11.11.2019 mentions that as per track consignment report of Indian Post Office, the notices sent to opposite parties no.1 and 2 have been duly delivered. Accordingly, service of summons upon opposite parties no.1 and 2 is held to be sufficient.
2. The instant petition is directed against the order dated 10.4.2019 passed by Principal Judge, Family Court, Kanpur Nagar in Case No.29/70 of 2018 under Section 25 of the Guardian and Wards Act. The case was filed by the petitioner seeking custody of his minor son Ashutosh Pandey (opposite party no.2), who is stated to be living with his mother (opposite party no.1). It is noteworthy that the marriage between the petitioner and opposite party no.1 was dissolved by a decree of divorce passed by Family Court, Bilaspur, Chhattisgarh on 3.8.2017. It seems that on 29.3.2019, the petitioner filed an application stating that opposite party no.1 had entered appearance in the proceedings on 11.7.2018, but she had not filed her written statement so far, therefore, the court should proceed under Order 8 Rule 10 CPC. On 10.4.2019, opposite party no.1 filed her written statement along with an application for condoning the delay in filing the written statement and for rejecting the application filed by the petitioner. She stated in the application that she could not file the written statement because of great mental stress she was undergoing upon coming to know that proceedings had been initiated by the petitioner for taking custody of the son from her. In the application she further stated that the petitioner had filed several miscellaneous applications in the proceedings and she remained busy in filing their reply and consequently, could not file the written statement. She also stated that she was not very well conversant with the legal intricacies, resulting in delay in filing of the written statement.
3. The trial court, after considering the application of opposite party no.1, declined to proceed under Order 8 Rule 10 CPC and accepted the written statement filed by her. Aggrieved thereby, the instant petition has been filed.
4. Counsel for the petitioner vehemently contended that after expiry of period of 30 days and extended period of 90 days stipulated under the proviso to Order 8 Rule 1 CPC, the court has no power to accept written statement. It is urged that Order 8 Rule 1 CPC is mandatory. In support of her submission, learned counsel for the petitioner has placed reliance on a judgment of the Supreme Court in M/s SCG Contracts India Private Ltd. Vs. K.S. Chamankar Infrastructure Pvt. Ltd. and others, AIR 2019 SC 2691, a judgment of a learned Single Judge of this Court in Dr. Nanda Agrawal Vs. Matri Mandi and another, 2005 (1) AWC 948, a judgment of Karnataka High Court in Smt. Savitha Gupta Vs. Smt. Nagarathna and others, AIR 2003 Kant 426 and a judgment of Chhattisgarh High Court in Smt. Anuradha Dubey Vs. Prasen @ Laxmikant Dubey.
5. Order 8 Rule 1 CPC was amended by Act No.22 of 2002 providing that where the defendant fails to file written statement within the period of 30 days, he shall be allowed to file the same on such other day, as may be specified by the court, for reasons to be recorded in writing but which shall not be later than ninety days from the date of service of summons.
6. The said provision was subject matter of consideration by the Supreme Court in large number of cases. The first amongst them being in Kailash Vs. Nanhku and others, AIR 2005 SC 2441, wherein the Supreme Court observed as under:-
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