1981 Supreme(MP) 299

M. L. Malik, J.
Manraman Shrivastava v. Laxmibai.
C. Revn. No. 13 of 1981 (1); Decided On : 22-4-1981.

Headnote:Civil P.C., 1908- O.8. R.10, Ss. 148 & 151-lime fixed for filing written statement under O. 8. R. 10-may be extended exercising power under S. 148 & 151. provisions are nut penal but are designed to facilitate justice.

       On 31-10-1979 the petitioners counsel was out of station. The petitioner could not, therefore, file his written statement. Nor did he produce his witnesses. The Court thereupon proceeded under Order 8 rule 10, CPC. The petitioner was given no further time to file his written statement and the case was fixed for evidence of the non-petitioner on 2-11-1979.

       On 2-11-1979, the petitioner sought leave of the Court to file his written statement, which was then ready. The Court refused leave. Evidence of the non-petitioner was recorded and Judgment was pronounced on 5-11-1979 in favour of the non-petitioner.

       The petitioner filed an appeal before the Fifth Additional District Judge, Jabalpur. By order dated 25-11-1980, the Additional District Judge has set aside the judgment and decree and has remanded the case for a fresh trial. The appeal Court held that the petitioner should have been permitted to cross-examine the non-petitioner and· that he was entitled to take part in the further proceedings though he had been debarred from filing the written statement;

       Being aggrieved by this order, the petitioner has filed this revision. His contention is that his written statement should have been accepted on record when tendered on 2- 11.1979.

       Held: There is no absolute prohibition to acceptance of the written statement after the Court exercised discretion to proceed under Order 8 Rule 10, CPC subject to adjustment of equities by payment of costs etc. the Court could extend time and this extension of time could be justified under section 148 read with section 151, CPC (See AIR 1974 Delhi 35: Sadaram v. Delhi Development Authority) Deshpande, J. has made very pertinent observations in para 9 of Sadarams judgment.

       In the present case, the written statement as tendered on 2-11-1979 just 3 days after the period fixed, the petitioner was not much at fault nor had any design to protract the trial. As soon as his counsel returned, he got the written statement drafted. The Court below was injudicious in the exercise of its discretion, for the Code of Civil Procedure is something designed to facilitale justice and further its ends and not a penal enactment for punishment and penalties, not a thing designed to rip people up. The trial Court was obviously hyper technical and strict in refusing to accept the written statement when the normal practice ought to be that part) $hou.1d not be condemnedu heard.

       The firse appeal Court ought to have directed the Court below to accept the written statement of the defendant and frame issues for decision on merits. AIR 1974 Delhi 35 relied on. Revision allowed.