Sec.151 , 148 and Or.VIII rule 1 of C.P.C - FORFEITED THE RIGHT TO FILE WRITTEN STATEMENT – CAN BE SET ASIDE = D.Sambasiva Rao Chowdary, S/o. Late D. Balkotaiah, Hindu, Aged 52 years, Occ. Agriculture, R/o. Gunfoundry, Bodhan. The State Bank of Hyderabad, Branch at Gunfoundry through its Assistant General Manager 2. The Debts Recovery Tribunal, rep. through its Recovery Officer, Palace Heights, Abids, Hyderabad. 3. The Hyderabad Chemical & Fertilizers Ltd., a company incorporated under Companies Act, having its registered office at 10-2-3, Intekhab Manzil, A.C. Guards, Hyderabad. 4. S.R. Patrick, Liquidator, Hyderabad Chemical and Fertilizers, Vijayanagar Colony, R-1, Hyderabad. = 2005 ( Aug. Part) judis.nic.in/judis_andhra/filename=2995

Sec.151 , 148 and Or.VIII rule 1 of C.P.C - FORFEITED THE RIGHT TO FILE WRITTEN STATEMENT – CAN BE SET ASIDE 

the law is well settled that the inherent power under Section 151 of C.P.C. cannot be exercised for extending the time for filing the written statement in view of Section 148 of C.P.C. which specifically provides for enlargement of time. If the defendant fails to file the written statement within the time permitted or fixed by the Court, it is not obligatory on the part of the Court to pronounce the judgment, but in exercise of power under Order 8 Rules 1, 1A & 10 of C.P.C. read with Section 148 of C.P.C. it is always open to the Court in appropriate cases to extend time to file the written statement. However, it is necessary for the Court to assign the reasons while granting such extension. It is true that such extension cannot be granted as a matter of course, but that can be done only in exceptional circumstances where the defendant offers acceptable explanation for its failure to file the written statement within the stipulated period.

In the case on hand, having considered the material on record, the Court below by a well-reasoned order having expressed its satisfaction as to the explanation offered by the 1st defendant allowed the application in question. The said discretion exercised by the Court below cannot be said to be vitiated on account of any extraneous considerations nor can it be termed as perverse. On a perusal of the affidavit filed in support of I.A.No.287 of 2004, it cannot be held that the explanation offered by the 1st defendant was not credible. Since the first defendant is a Bank, keeping in view the public interest involved the Court cannot totally ignore the realities in the administrative delays and therefore a liberal approach is necessary in considering the explanation offered. Hence, the Court below has rightly allowed the petition on payment of costs.

2005 ( Aug. Part) judis.nic.in/judis_andhra/filename=2995

THE HON'BLE MS. JUSTICE G.ROHINI      

Civil Revision Petition No.6218 OF 2004

05/08/2005 

D.Sambasiva Rao Chowdary,   

S/o. Late D. Balkotaiah, Hindu,

Aged 52 years, Occ. Agriculture,

R/o. Gunfoundry, Bodhan.                

The State Bank of Hyderabad, Branch  

at Gunfoundry through its Assistant

General Manager  

2. The Debts Recovery Tribunal, rep.

through its Recovery Officer,

Palace Heights, Abids, Hyderabad. 

3. The Hyderabad Chemical & Fertilizers Ltd.,

a company incorporated under Companies Act,  

having its registered office at 10-2-3,

Intekhab Manzil, A.C. Guards, Hyderabad. 

4. S.R. Patrick, Liquidator,

Hyderabad Chemical and Fertilizers,

Vijayanagar Colony, R-1, Hyderabad. 

Counsel for the petitioner      :       Mr. Balraj Bodhankar

Counsel for the respondent No.1:         Mr.K.V. Simhadri         ---

:ORDER:  

        This Revision Petition is directed against the order dated    16-9-2004 in

I.A.No.287 of 2004 in O.S.No.37 of 2002 on the file of the Court of the Senior

Civil Judge, Bodhan.

        The  Revision petitioner is the plaintiff in the suit filed for

declaration of title by virtue of adverse possession in respect of the suit

schedule property. The respondents herein are the  defendants 1 to 4

respectively  in the suit.

For the sake of convenience,  the parties shall hereinafter be referred as the

plaintiff and the defendants as they were arrayed in the plaint.

It is not in dispute that the defendants 2 and 3 (the respondents 2 and 3

herein) were set ex parte, and the summons could not be served on the defendant

No.4 for want of correct address.  So far as the 1st defendant (respondent No.1

herein) is concerned, though summons were served and  the Counsel entered 

appearance, since the written statement was not filed, by order dated 14-8-2003

the right to file written statement was forfeited.

        While the matter stood posted to 20-8-2004 for furnishing the correct

address of the fourth defendant, on 10-8-2004 the first defendant filed

I.A.No.287 of 2004 under Order VIII Rule 1 of C.P.C. read with Sections 148 and

151  of C.P.C. seeking permission to file written statement by setting aside the

order dated 14-8-2003.

        The Assistant General Manager of the first defendant has  sworn to the

affidavit in support of the said application stating that she assumed charge on

24-5-2004 and that she came to know that the right to file written statement was

forfeited on 14-8-2003. Then, she took up the matter and personally contacted

their counsel and instructed to file written statement, it is stated that as her

predecessor and herself were very busy in the administrative maters, the written

statement could not be filed within the stipulated time.  It was further stated

that the 3rd defendant owes a  sum of Rs.9,00,79,943-97 ps and the same has to

be realised by selling away the suit schedule properties which were mortgaged by

the third defendant in favour of the first defendant Bank and that the plaintiff

was in no way concerned with the suit schedule property. In the circumstances,

unless permission is granted to the first defendant to file written statement

they stand to suffer irreparable loss and the amounts due from the third

defendant cannot be recovered.

        The Plaintiff filed a counter opposing the said application and stating

that the application filed one year after the order forfeiting  the right of the

first defendant to file written statement is not bona fide and absolutely no

satisfactory explanation was offered to set aside the said order and to permit

the first defendant to file written statement. It was also stated that the

averments made in the affidavit filed in support of the application are false,

fictitious and created only for the purpose of filing the application.

        The Court below, after hearing both the parties, by order dated 16-9-2004

allowed the petition subject to payment of costs of Rs.200/- on or before 30-9-

2004 failing which petition shall stand dismissed. Aggrieved by the said order,

this Revision Petition is filed by the plaintiff.

        I have heard the learned Counsel for both the parties and perused the

material on record.

        The learned counsel for the Revision petitioner  submits that since the

first defendant failed to file written statement within 90 days as prescribed

under Order VIII Rule 1 of C.P.C., the Court below has rightly forfeited its

right to file written statement. The learned Counsel contends that whereas the

said order forfeiting the right to file written statement was passed on 14-8-

2003, the present application seeking permission to file written statement by

setting aside the order of forfeiture was filed only on 19-9-2004 i.e, after

more than an year which itself shows that the application is not bona fide. The

learned Counsel submits that having regard to the facts and circumstances of the

case the Court below ought to have held that the officials of the first

defendant Bank were guilty of gross negligence and laches and therefore ought

not to have passed any order in their favour.

        The further contention of the learned Counsel for the petitioner  is that

if a defendant fails to present the written statement  within the time permitted

or fixed by the Court, it is obligatory on the part of the Court to pronounce

the judgment.   According to the learned Counsel, Rule 1 of Order VIII of C.P.C.

is  mandatory  and it should be interpreted in strict terms.

On the other hand, the learned Counsel for the first respondent Bank submits

that the impugned order  does not suffer from any infirmity warranting

interference by this Court under Article 227 of the Constitution of India.

        In NACHIPEDDI RAMASWAMY v. P. BUCHI REDDY1, this Court having considered         

the scope and object of Order VIII of Rule 1 of C.P.C. as amended by Act 22 of

2002 as well as Order VIII Rule 10 of C.P.C. held as under :

"....   ... Rule 1, 1A and 10 of Order VIII together would show that though  a

defendant is required to file written statement  within 30 days after receipt of

summons and though the Court can extend the time till 90 days, the Court is not

divested of power to fix further time for filing the written statement.   It is

well settled that  this cardinal principle of interpretation  of law with an

enactment  has to be read as a whole and then the entire section has to be read

and thereafter the act has to be interpreted section by section.  One Rule or

one Section in the enactment could  be a guiding factor  for arriving at the

intendment  of the Legislature.  The very fact that Rule 10 is reintroduced by

Act 22 of 2002 by the Parliament would show that the Parliament never intended

the Civil Court to pronounce judgment immediately after the failure on the part

of the defendant  to file written statement within 90 days.

        Further, Section 148 C.P.C. empowers the Court  to enlarge the time. In

addition to this, we must not forget that the Civil Court being a Court of

equity, justice and good conscience  is also vested with inherent powers under

Section 151 CPC to avoid miscarriage of justice.  It is always open to the Civil

Court to exercise inherent powers provided such exercise is not totally

derogatory to the main provisions of the Act and the Rules made thereunder."

In CENTENARY BAPTISH CHURCH, NAKKALAGUTTA, HANMKONDA v. SHYAMSUNDER2, it was                     

held that the Court can extend the time to file the written statement even after

expiry of 90 days provided that the Court finds sufficient cause. The

observations made by this Court in the said case  may be extracted as under :

"In appropriate cases the Court can extend time where the ends of justice

require such extension.  But at the same time it is to be remembered that when

the defendant fails to file the written statement as directed by the Court, a

vested right accrues to the plaintiff and any order to be passed subsequently

for extension of time shall be passed keeping in view the facts and

circumstances of the case, conduct of the defendant, and the prejudice that

might be caused to the plaintiff in whose favour already a vested right accrued.

Therefore any extension of time for filing the written statement shall be on

reasonable grounds and in exceptional circumstances to render substantial

justice to the parties."

        In a recent decision - G.PARIMALA vs. BIMALA BHATIA3, a Division Bench of  

this Court also had an occasion to consider the very same question and it has

been held as under :

"...    ... Once the Court is empowered to grant time, beyond 30 days, for filing

written statement, the necessary substratum for exercise of power  under Section

148 comes into existence. The reason is that the time allowed for filing written

statement  beyond 30 days is or becomes, the one "fixed or granted by the Court"

and not the one stipulated by C.P.C.  The maximum limit of 90 days, indicated in

the proviso, at the most constitutes a guiding factor for the Courts, in

exercise of  their jurisdiction, but not a basis to deny them the power,

specifically conferred under Section 148. Such a construction would accord with

the complete scheme of Order VIII, and Section 148.     ...... "

        However, in the above case, the Division Bench has disagreed with the view

expressed in NACHIPEDDI RAMASWAMY's  case (1 supra) that the inherent power      

under Section 151 of C.P.C. can also be exercised for extending the time for

filing the written statement and observed that Section 151 of CPC does not get

attracted to the situations which are governed by specific provisions.

        In the light of the ratio laid down in the above cases, I do not find any

substance in the contentions raised by the learned Counsel for the petitioner.

        In the case on hand, it is true that the Counsel for the 1st defendant

filed his vakalat on 7-1-2003 and at the request of the first defendant on 11-3-

2003 time for filing its  written statement was extended till 9-4-2003.

Thereafter, at the instance of the 1st defendant the matter was adjourned from

time to time by extending the time for filing the written statement and

ultimately the matter was posted to 14-8-2003. However, even on 14-8-2003 the

written statement was not filed and therefore the Court below passed an order

forfeiting the right of the 1st defendant to file the written statement. Since

the 1st defendant could not file the written statement within 90 days as

stipulated under Order VIII Rule 1 of C.P.C., no doubt the order dated 14-8-2003

cannot be held to be erroneous or without jurisdiction. However, the question is

whether  it is impermissible to set aside such an order  and to grant further

extension of time for filing written statement, in case the 1st defendant makes

out sufficient cause for its failure to file the written statement within the

stipulated period.

As noted above, the law is well settled that the inherent power under Section

151 of C.P.C. cannot be exercised for extending the  time for filing the written

statement in view  of Section 148 of C.P.C. which specifically provides for

enlargement of time. If the defendant fails to file the written statement within

the time permitted or fixed by the Court, it is not obligatory on the part of

the Court to pronounce the judgment, but in exercise of power under Order 8

Rules 1, 1A & 10 of C.P.C. read with Section 148 of C.P.C. it is always open to

the Court in appropriate cases to extend time to file the written statement.

However, it is necessary for the Court to assign the reasons while granting such

extension.  It is true that such extension cannot be granted as a  matter of

course, but that can be done only in exceptional circumstances where the

defendant offers acceptable explanation for its failure to file the written

statement within the stipulated period.

In the case on hand, having considered the material on record,  the Court below

by a well-reasoned order having expressed its satisfaction as to the explanation

offered by the 1st defendant allowed the application in question. The said

discretion exercised by the Court below cannot be said to be  vitiated on

account of any extraneous considerations nor can it be termed as perverse.  On a

perusal of the affidavit filed in support of I.A.No.287 of 2004, it cannot be

held that the explanation offered by the 1st defendant was not credible. Since

the first defendant is a Bank, keeping in view the public interest involved the

Court cannot totally ignore the realities in the administrative delays and

therefore a liberal approach  is necessary in considering the explanation

offered.  Hence, the Court below has rightly allowed the petition on payment of

costs.

        For the aforesaid reasons, I do not find any justifiable reason to

interfere with the impugned order  which is in accordance with the settled

principles of law. The said order which is not vitiated on account of any patent

error of fact or law, does not warrant interference  in exercise of supervisory

jurisdiction under Article 227 of the Constitution of India.

        The Revision Petition is devoid of any merit and the same is accordingly

dismissed. No costs. 

?1 2003 (4) ALD 648 

2 2004 (1) ALD 581 

3 2005 (3) ALD 867 (DB)