The Hon'ble Sri Justice C.V.Nagarjuna Reddy
Civil Revision Petition No.1517 of 2012
13-09-2012
Pillala Chennakesavulu
Pillala Reddikumar and another
^Counsel for the petitioner: Sri K.Venkat Rao
!Counsel for the respondents: Sri C.Sumon
<Gist:
>Head Note:
?Cases referred:
1. (2005) 4 SCC 480
2. (2007) 6 SCC 420
3. (2009) 3 SCC 513
Order:
This Civil Revision Petition is filed against Order, dated
15-09-2011, in IA.No.93 of 2011 in OS.No.18 of 2007, on the file of the Court of
the learned Senior Civil Judge, Kadiri.
I have heard Mr.K.Venkat Rao, learned Counsel for the petitioner, and
Mr.C.Sumon, learned Counsel for the respondents.
The respondents have filed the abovementioned suit for partition and separate
possession of the suit schedule property. The petitioner herein is defendant
No.2, his father is defendant No.1 and his mother is defendant No.3 in the said
suit. As the defendants did not file written statement, they were set ex parte.
IA.No.315 of 2009 was filed on behalf of all the defendants including the
petitioner herein for setting aside the ex parte order. The said IA was allowed
by the lower Court permitting all the defendants to file a written statement.
The parents of the petitioner i.e., defendants 1 and 3 have filed separate
written statements in December, 2007. However, no written statement was filed
by the petitioner. On 22-10-2010, issues were framed and the case was posted to
22-11-2010 for trial. After filing the affidavits in lieu of chief-examination
by the plaintiff witnesses, when the case was coming up for cross-examination of
PW.1, the petitioner filed IA.No.93 of 2011 for permission to file written
statement. This application was dismissed by the lower Court by the Order under
revision.
At the hearing, the learned Counsel for the petitioner submitted that as his
client was seriously ill, he could not file written statement when his parents
have filed separate written statements in the year 2007 and that even though a
written statement was prepared on behalf of the petitioner on 22-09-2010 itself,
by inadvertence, the same could not be filed.
The lower Court held that the reason putforth by the petitioner that he was
seriously ill was not supported by any medical evidence and that his request for
permission to file a written statement at a time when the case was posted for
cross-examination of PW.1 is highly belated and not acceptable.
Along with this Civil Revision Petition, the petitioner has filed some of the
documents purported to be the medical certificates, a perusal of which would
show that they pertain to the year 2007. Even today, the learned Counsel for
the petitioner has placed before the Court some additional documents, which
reveal that they also pertain to the year 2007. No medical certificates for the
subsequent period have been produced by the petitioner even now before this
Court. Even if the medical certificates on which the petitioner is seeking to
place reliance are taken into consideration, on their face value, they only show
that he was ill in the year 2007. As pointed out by the lower Court, if the
petitioner was really ill during the relevant period nothing could have
prevented him from filing documentary evidence in support of his illness.
Coming to the plea of the petitioner that the written statement was prepared as
far back as 22-09-2010 and that inadvertently, the same could not be filed, in
my opinion, if this plea was correct nothing could have prevented him from
filing the same in the Court atleast on 22-10-2010, when the lower Court has
framed issues and adjourned the case to 22-11-2010.
In order to prevent avoidable delays, the Parliament has amended the provisions
of Order VIII Rule 1 of the Code of Civil Procedure, 1908 (for short 'the CPC'),
by Act 22 of 2002 with effect from 01-07-2002. As per the amended provision,
the defendant shall, within 30 days from the date of service of summons, present
the written statement of his defence. The proviso thereto, however, gives
discretion to the Court to extend the time for a period not later than 90 days
from the date of service of summons, if it is satisfied with the reasons
assigned by the defendant for not filing the written statement within 30 days .
Even though Order VIII Rule 1 of the CPC, the abovementioned provision is
couched in mandatory terms, in Kailash vs. Nanhku1, the Supreme Court held that
that said provision is directory in nature as, in cases where the defendants are
prevented from filing written statements for genuine reasons, it will cause
extreme hardship to them if they are not permitted to file written statements
within the stipulated time. The Apex Court, however, added a caveat that only
in exceptional situation, the Courts can permit filing of written statements
beyond the period of 90 days. P.K.Balasubramanyan, J, who was a party to the
judgment in Kailash (1 supra), observed in R.N.Jadi & Bros. vs.
Subhashchandra2 that the Court cannot show unduly liberal approach in its
anxiety to do justice and exercise its discretion to permit a party to violate
even the procedural law in a routine manner. These judgments fell for review in
Mohammed Yusuf vs. Faij Mohammad and others3, wherein the Supreme Court set
aside the order of the High Court by which the belated application of the
defendant for filing written statement was allowed, after setting aside the
orders of the trial Court and the District Court. The Supreme Court, on finding
that the defendant was not diligent in filing written statement, opined that the
High Court should not have allowed the Writ Petition filed by the defendant and
permitted him to file written statement in the absence of proper reasons
putforth by him justifying the delay.
Applying the above settled law to the facts of this case, I am of the opinion
that the petitioner failed to show any diligence whatsoever in filing written
statement for a period of more than 3 years even though an opportunity was
presented to him by the lower Court in the year 2007 itself by setting aside the
ex parte order. Interestingly, all the defendants including the petitioner
appear to be represented by a common lawyer. Therefore, the petitioner cannot
have any excuse for not filing a written statement when his parents have filed
separate written statements in the year 2007 itself.
On the analysis as above, I do not find any jurisdictional error in the order of
the lower Court in dismissing the petitioner's application for permitting him to
file written statement after commencement of trial.
The Civil Revision Petition is, accordingly, dismissed.
As a sequel, interim order, dated 18-04-2012, is vacated and CRPMP.No.2028 of
2012 is disposed of.
_________________________
(C.V.Nagarjuna Reddy, J)
Date: 13-09-2012
