High Court allowed a writ petition directing the trial court to accept a late written statement filed due to counsel's default, an order coupled with a fine.
Directing the trial court to accept the written statement within 7 days and imposing a fine of Rs. 5,000 on the petitioner.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR WP227 No. 517 of 2024
---- Petitioner
Versus
1. Yashsvi Sahu S/o Eman Singh Sahu Aged About 17 Years (Minor) (Plaintiff No. 1)
2. Ku. Kanishka Sahu D/o Eman Singh Sahu Aged About 14 Years (Minor) (Plaintiff No.2)
Respondent No.1 and 2 being Minor Through Their Natural Guardian (Mother) Smt. Vinita Sahu, W/o Eman Singh Sahu Aged About 37 Years, R/o Village Parewadih, Post Sambalpur, Thana Arjuni, Tahsil And District Dhamtari Chhattisgarh
3. Eman Singh Sahu, S/o Late Latkhor Sahu, Aged About 50 Years R/o Village Parewadih, Post Sambalpur, Police Station Arjuni, Tahsil And District Dhamtari Chhattisgarh (Defendant No. 1)
4. Shashikant Sahu, S/o Prabhuram Sahu Aged About 34 Years (Defendant No. 2)
5. Lalita Sahu, D/o Prabhuram Sahu, Aged About 32 Years Caste Teil (Defendant No. 3)
Respondent No.4 & 5 are R/o Stationpara, Dhamtari, Tahsil and District Dhamtari (C.G.)
6. State of Chhattisgarh, Through Through Collector, Dhamtari, District Dhamtari Chhattisgarh (Defendant No. 5)
---- Respondents
CAUSE TITLE TAKEN FROM CIS PERIPHERY
------------------------------------------------------------------------------------------------------------------For Petitioner : Mr. Punit Ruparel, Advocate For State/respondent No.6 : Mr. Pramod Ramteke, PL
Hon'ble Shri Justice Deepak Kumar Tiwari Order On Board
26.06.2024
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1. This petition has been filed challenging the order dated 11.06.2024 passed by 2nd Civil Judge, Class-II, District Dhamtari in Civil Suit No.48A/2023 whereby the said Court has refused to take written statement on record as the same was filed beyond the period of 90 days from the date of the service of summons under Order 8 Rule 1 of the Code of Civil Procedure, 1908.
2. Brief facts of the case are that plaintiff/respondent No.1 & 2 filed a civil suit for declaration of title and permanent injunction. The suit property was purchased by defendant No.2 on 09.05.2023, by the registered sale deed, which was challenged in the said suit to be declared null and void. On 25.07.2023, the petitioner appeared in the said suit and on the same day, he filed an application under Order 9 Rule 7 of the C.P.C. to set aside and declare him as ex parte on 04.07.2023 and on the same day, the application was allowed. Thereafter, the case was listed for reply of Order 39 Rule 1 & 2 of the C.P.C. The counsel engaged earlier for one and another reason, could not file the written statement within the stipulated time.
3. In such circumstances, on 10.05.2023, the petitioner has filed an application under Section 151 of the C.P.C. mentioning the fact that his earlier counsel, Shri. Divyanshu Sahu had not filed written statement and opportunity has been closed on 09.11.2023, therefore, he had changed the counsel. In such circumstances, the trial Court may be directed to accept the written statement to advance the cause of justice.
4. From perusal of the proceeding of the trial Court, it appears
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that even after service of the notice on 04.07.2023, defendant No.4/petitioner did not appear and in the said date, ex parte proceeding was ordered and after appearance of the petitioner on 25.07.2023, he has filed an application under Order 9 Rule 7 of the C.P.C. and the same was allowed and ex parte proceeding was set aside. The counsel engaged earlier by the petitioner had filed the reply of the application on 31.07.2023, under Order 39 Rule 1 & 2 of the C.P.C., and thereafter, the case was listed for hearing on such application. On 05.09.2023, the case was listed for filing of the written statement and on 22.09.2023, 12.10.2023, 25.10.2023 and 03.11.2023, counsel engaged by the petitioner sought time for filing the written statement. Even on 03.11.2023, the trial Court has granted last opportunity but the counsel had not filed the written statement on 09.11.2023, therefore, the opportunity for filing of the written statement was closed. The object of Order VIII Rule 1 is to expedite and not to scuttle the hearing. When the Officer’s of the Court i.e. the Advocate fails to file the written statement and even not pleaded any instructions from the client, it appears that the counsel has failed to perform his duty to advance the cause of justice.
5. In the circumstances, the petitioner herein has filed an application to change the counsel and sought time for filing of the written statement.
6. In the matter of Salem Advocate Bar Association Vs. Union of India, AIR 2005 SC 3353 , a three Judge Bench of the Supreme
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Court has explained the object behind the amendment of Order 8, rule 1 and the manner in which the provision is to be construed. It has been held that the use of the word “shall” in the provision by itself is not conclusive to determine whether the provision is mandatory or directory. The object which is required to be served by this provision and its design and context in which it is enacted, have to be ascertained. The rule in question has to advance the cause of justice and not to defeat it. On failure of the defendant to file written statement the Court has been given discretion to pronounce judgment or make such other orders in relation to the suit as it thinks fit under Order 8, rule 10 of the Code. This discretion has to be exercised by Courts to promote justice and prevent miscarriage.
7. In the matte of Zolba Vs. Keshao And Others, (2008) 11 SCC
769, it has been observed that it cannot also be forgotten that in an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. In the said case, in the application, it has been stated that on instruction of his counsel in the trial Court, the written statement was not filed within the period of limitation and it has been further observed that the rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are hand-maid of justice and not its mistress, therefore, in that context, the strict interpretation would
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defeat justice.
8. In the present case, when the party has engaged the counsel, it is his bounden duty that he makes all such efforts to raise defence and file reply/written statement before the Court. When the lawyer failed to perform his duty and bring to the notice of the Court about such fact and in such circumstances, the counsel was changed. Even the counsel has not pleaded earlier about any instruction from his client and the earlier engaged counsel had sought several times and not prepared the reply/written statement.
9. In the circumstances, this Court deems it appropriate to direct that the trial Court shall accept the written statement, if the same is filed by the petitioner within a period of 7 days form the date of receipt of copy of this order. Considering the facts and circumstances of the case, a cost of Rs.5,000/- is imposed on the petitioner/defendant No.4 to be paid to the plaintiff through his counsel.
10. It is made clear that if the aforesaid requisites are fulfilled, the trial Court shall condoned the delay in filing the written statement.
11. With the aforesaid observations, this Writ Petition stand disposed of.
12. C.C. today. Sd/-
(Deepak Kumar Tiwari) Judge
Priyanka
2 issues framed by the court
Whether the High Court should condone the delay in filing a written statement under Order 8 Rule 1 CPC when counsel failure caused the delay.
Whether interests of justice permit accepting a late written statement under Section 151 CPC.
Colour shows how this judgement treated each authority
Salem Advocate Bar Association Vs. Union of IndiaRelied on¶28
Salem Advocate Bar Association Vs. Union of India, AIR 2005 SC 3353 · Who else cites this
Zolba Vs. Keshao And OthersRelied on¶31
Zolba Vs. Keshao And Others, (2008) 11 SCC 769 · Who else cites this
3 provisions across 1 enactments
Motiram Sahu
Yashsvi Sahu
Ku. Kanishka Sahu
Smt. Vinita Sahu
Eman Singh Sahu
Shashikant Sahu
Deepak Kumar Tiwari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Deepak Kumar Tiwari
Parties & counsel
