Allowed

Nagoji Srinivasa Rao v. Mokkapati Vijaya Lakshmi

Andhra Pradesh HC9 Dec 2022CRP/360/2020

Case brief

AI extract

What is this about?

The High Court set aside the trial court order dismissing an application to set aside forfeiture of the right to file a written statement. While the petitioner could not file the written statement due to the statutory deadline, the court permitted the petitioner to contest the suit by participating in future proceedings.

What did the court decide?

Civil Revision Petition allowed; order dated 27.11.2019 set aside; petitioner permitted to contest suit by participating in future proceedings without filing written statement.

Nagoji Srinivasa Rao Vs Mokkapati Vijaya Lakshmi — Partition | Andhra Pradesh HC (2022)

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THE HON’BLE Ms. JUSTICE B.S.BHANUMATHI Civil Revision Petition No.360 of 2020

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ORDER :

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This civil revision petition, under Article 227 of the Constitution of India, is filed against the order, dated 27.11.2019, dismissing I.A.No.540 of 2019 in O.S.No.235 of 2013 on the file of the Court of XIII Additional District Judge, Krishna District, at Vijayawada, filed under Order IX Rule 7 and Section 151 CPC to set aside the order passed on 17.02.2017 forfeiting right of the 4^th defendant to file his written statement and permit him to contest the suit.

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2 . Heard Ms. K. Pallavi , learned counsel, representing Sri K. V. Bhanu Prasad, learned counsel for the revision petitioner/4^th defendant and Sri Marri Venkata Ramana , learned counsel for the 1^st respondent/plaintiff.

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3 . The 1^st respondent filed suit for partition, against respondents Nos.2 to 4/defendants 1 to 3 and the petitioner/D-4. The petitioner/D-4 contended that he could not file his written statement on or before 17.02.2017 as he was busy in going to Hyderabad in respect of pendency of the appeal in A.S.No.74 of 2008 and cross appeal filed by Vijaya Lakshmi and could not contact his counsel in respect of the proceedings in this suit and when he came to

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Vijayawada in August, 2019, he was informed that his right to file written statement was forfeited by the order of the Court. He claims that the delay in not filing the written statement earlier is purely a mistake and because he was attached to the appeal proceedings before the High Court, besides cross appeal and revision petition (CRP) filed by the petitioner against the order dismissing the petition under Order VII Rule 11 CPC.

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4 . The petition was opposed by filing the counter of the 1^st respondent/plaintiff and the same was adopted by the respondents Nos.2 to 4/D-1 to D-3. In the counter, it is contended that the reasons stated by the petitioner are not true. It is also stated that originally the petitioner/D-4 filed a suit for partition of some of the joint family properties vide O.S.No.21 of 2001 on the file of the Court of II Additional District Judge, Vijayawada, against the respondents, that the same was dismissed on technical grounds, that some more properties which are available for partition were not included in the suit. Therefore, the 1^st respondent/plaintiff herein filed this suit for partition of all joint family properties liable for partition, having realized that the petitioner/defendant No.4 has no grounds to contest the suit, has been playing several tricks to delay the suit proceedings as he has been managing the suit properties on behalf of all the share holders and enjoying the proceeds without paying any share to the respondents. It is further contended that

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the petitioner filed I.A.No.649 of 2013 to reject the plaint and dragged on the matter and finally, the petition was dismissed on 06.01.2017 by the trial Court and thereafter a revision in CRP.No.1657 of 2017 was filed and the same was also dismissed on merits in the High Court on 28.06.2019. The 1^st respondent contends that the petitioner has intentionally failed to file the written statement and that the petitioner has been working in Andhra Bank, Vijayawada and attending his duties regularly and therefore there is no need for him to travel or stay in Hyderabad for a long time for the purpose of appeal and cross appeal which were never listed for hearing and moreover the High Court has been shifted from Hyderabad and established in the State of Andhra Pradesh w.e.f., 01.01.2019. Therefore, the respondents claim that there are no bona fides in filing the petition and prayed to dismiss the petition.

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5 . After hearing both parties, the trial Court dismissed the petition disbelieving the reasons stated by the petitioner.

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6 . Having been aggrieved of the order of dismissal, this revision petition is filed on the grounds that the affidavit of the petitioner was drafted in a casual manner by the counsel who appeared before the trial Court and that the petitioner is not responsible for the statements in the affidavit and that the trial Court ought to have

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considered that the petitioner is not aware that sufficient cause which is an essential requirement to set aside the order of forfeiture has (sic not) been made out. It is further contended that the petitioner was not informed about the seriousness if no written statement is filed within time. He further contended that the petitioner has been closely following his counsel and was not negligent at any point of time and it is only during the trial it was realized by the counsel to file an application and therefore the petitioner should not suffer due to mistake of the counsel.

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7 . Respondents Nos.2 to 4/defendants 1 to 3 are shown as not necessary parties.

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8. The learned counsel for the petitioner reiterated the contentions in the affidavit and the grounds raised in the revision and placed reliance on the decision of the Supreme Court in Rafiz and another v. Munshilal and another¹ , wherein it was observed that the interest of an innocent party should not suffer for misdemeanor or inaction of his counsel. In the same context, she further referred to a decision of the Telangana High Court in Mallaram Sanjeeva Goud, Ranga Reddy District and others v. P. Bhikshapathi, Ranga District and others² , wherein it was held that it is settled law that parties engage Advocate and rely on

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1 1981 AIR (Supreme Court) 1400

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2 2019 (5) ALT 10

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the Advocate to take care of their interests. If they are not properly advised by the Advocate and when they immediately approach the Court within the stipulated period of limitation, the Court cannot dismiss the said application on the ground that petitioners should prove willful negligence on the part of their earlier counsel on record.

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9 . Per contra , learned counsel for the 1^st respondent contended that the revision petitioner now contends that the reasons mentioned in the affidavit for the delay are not proper and blames the counsel, and yet, did not state what are the actual reasons/facts which are sufficient to explain the delay.

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10 . In response, learned counsel for the revision petitioner submitted that the petitioner mentioned the reasons in the affidavit filed in support of I.A.No.1 of 2020 which is filed to grant interim stay and has drawn the attention of this Court to the facts pleaded in para (3) of the affidavit which states that since the dispute in the suit relates to family issue and the sister of the revision petitioner filed the suit, the matter was placed before the elders for settlement, and thereby, the written statement could not be filed; but, the counsel for the revision petitioner before the trial Court did not inform about the seriousness of non-filing of written statement and that the petitioner was not at all negligent and he was not

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aware of the time stipulated to file written statement and he honestly followed the counsel, as he is ignorant of law and drafting of pleadings and further had he been informed about the consequences of non-filing of written statement , he would not have neglected to file the written statement. It is also stated in the affidavit that only after the trial Court dismissed the petition holding that the reasons stated are not proper, then, the petitioner realized the mistake and the negligent drafting of his counsel. In view of the said facts pleaded, learned counsel for the 1^st respondent submitted that ignorance of law is not an excuse.

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11 . Learned counsel for the 1^st respondent/plaintiff contended that the decisions relied on by the revision petitioner do not apply to the present case since the revision petitioner cannot blame the counsel as he has experience of participating in the civil litigation as he had filed similar suit for partition and is an educated person doing employment in a bank for a long time. In this context, learned counsel for the 1^st respondent/plaintiff further submitted that the data available on e courts’ website shows that still the same advocate is continuing for the revision petitioner and had the advocate been so un-courteous to his client, the petitioner would not have continued to engage his services any further, and that itself exhibits that it is only a lame excuse to seek to condone delay and sheer negligence on the part of the petitioner. Learned counsel

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for the revision petitioner has not controverted the statement that the same advocate is continuing for the petitioner before the trial Court. As such, there is acceptability in the argument put forth by the learned counsel for the 1^st respondent/ plaintiff in this regard.

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12 . He further submitted that the reason for the delay stated originally in the affidavit is also not acceptable as the petitioner is an employee working in Andhra Bank in Vijayawada for long time, and therefore, there is no need for him to stay in Hyderabad for three long years between the date of forfeiting the right to file written statement and the date of filing petition to set aside the order and moreover when the matters have not reached for hearing in the appeal, it is obviously a lame excuse shown as reason for not filing the written statement. He further submitted indeed the petitioner did not choose to file written statement and has been being negligent in filing the written statement. He further stated that the petitioner has not filed written statement, at least along with this petition, to show his bona fides and to disclose his defence to enable the Court to consider whether there is any reason to allow him to contest the suit in the interest of justice.

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13 . For better appreciation, Order VIII Rule 1 CPC is excerpted hereunder:

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Order VIII Rule 1 of CPC.

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"1. WRITTEN STATEMENT:-

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(1) The defendant shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence.

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Provided 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 reason 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."

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14 . Learned counsel for the revision petitioner submitted that

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time prescribed under Order VIII Rule 1 CPC is applicable only in respect of commercial cases but not for any other suit as held by the Supreme Court in Shoraj Singh v. Charan Singh³ , and therefore, on sufficient reason being shown, the same can be received. Per contra , learned counsel for the 1^st respondent/ plaintiff submitted that as per Order VIII Rule 1 CPC, written statement shall be filed within thirty (30) days and an exception has been carved out in the same provision to allow filing of written statement within further sixty (60) days, however, subject to giving reasons. He further submitted that though time is stipulated in the

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3 Live Law 2021 SC 573

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said provision, the Hon’ble Supreme Court in the case of Salem

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Advocate Bar Association, Tamil Nadu Vs. Union of India

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(UOI)⁴ held that in exceptional hard circumstances which prevent a party from filing written statement, it can be received even beyond 90 days period, but not in the present case where the petitioner has not shown any such exceptional hard circumstances or situations which prevented him from filing written statement, and therefore, it cannot be received.

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15 . The legal proposition is not in dispute. As rightly submitted by the learned counsel for the 1^st respondent/plaintiff, written statement can be received even beyond the period stipulated, however, on establishing exceptionally hard circumstances and in the present case, no such reasons are shown as already discussed. Furthermore, it is not the prayer of the petitioner to receive the written statement nor is it enclosed to the petition since the affidavit does not refer to it nor does the petition contain a list of enclosures. The trial Court has erroneously mentioned in the order in its beginning paragraph referring to the prayer in the petition as if the petitioner sought permission to file written statement. It is an obvious error crept in the order. The learned counsel for the revision petitioner submitted that a copy of the written statement is available in her file. Its copy was also not even filed before this

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4 (2005) 6 SCC 344

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Court. However, the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the Legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII, Rule 1 CPC, vide decision in Salem Advocate Bar Association, Tamil Nadu vs. Union of India (UOI) AIR 2005 SC 3353. Therefore, even if by chance, the petitioner has filed before the trial Court a written statement along with the petition, the same cannot be received as the period stipulated in Order VIII Rule 1 CPC is completed and very long period of delay happened thereafter and the petitioner could not show any such exceptionally hard circumstances which prevented him to bring the case within the exception provided by the Supreme Court in the Case of Salem

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Bar Association (1 supra).

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16 . The trial Court erred in dismissing the petition under the impression that the petitioner wanted to receive the written statement, but in fact, no such prayer is sought by him. The petitioner sought only to permit him to contest the suit which even in the absence of petition also is permissible only in respect of future proceedings.

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17. Recently, in a case before the Supreme Court in Nanda Dulal

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Pradhan & Another v. Dibakar Pradhan & Another⁵ , wherein similar facts as in the case before this Court, on sufficient reasoning being shown for setting aside the ex parte decree, the defendants 2 & 3 were allowed to participate in the trial for cross-examining the witness, but they were not permitted to file the written statement since they failed to file the written statement in spite of availing number of opportunities. The operative portion of the judgment reads as follows:

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“4. In view of the above and for the reason stated above the impugned judgment and order passed by the High Court is hereby set aside. The order passed by the First Appellate Court setting aside the ex-parte judgment and decree and restoring the suit is hereby restored. However, it is observed that on restoration of the suit, the defendant Nos.2 & 3 shall not be permitted to file the written statement, as though number of opportunities were given earlier, they did not file the written statement. However, at the same time they may be permitted to participate in the suit and cross-examine the witnesses and make submissions on merits. ….”

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Thus, it is settled law that a defendant who is set ex parte can participate in future proceedings. As such, the petitioner is entitled only to participate in the future proceedings of the suit, but cannot file written statement.

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5 Civil Appeal No.4151 of 2022 decided on 11.07.2022

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18 . Accordingly, the Civil Revision Petition is allowed setting aside the order, dated 27.11.2019, passed in I.A.No.540 of 209 in O.S.No.235 of 2013 and allowing the said petition. The petitioner is

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permitted to contest the suit by participating in the future proceedings, but without filling the written statement.

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There shall be no order as to costs.

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Miscellaneous petitions pending, if any, shall stand closed.

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________________ B.S BHANUMATHI, J

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09-12-2022 RAR

Nagoji Srinivasa Rao v. Mokkapati Vijaya Lakshmi

Case brief

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Nagoji Srinivasa Rao v. Mokkapati Vijaya Lakshmi

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