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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 272 OF 2008
IN
NOTICE OF MOTION NO. 1303 OF 2008
IN
SUIT NO. 855 OF 2001
Saga Department Stores Limited ) a Company duly incorporated under the )
Companies Act, 1956 and having its ) registered office at B5, Jangpura, ) Main
Mathura Road, New Delhi 110 014 ) and its Mumbai office at 257, S.V. Road )
Bandra (West), Mumbai 400 050 ).. APPELLANTS
Versus
Falak Home Developers Pvt. Limited ) a Company duly incorporated under the )
Companies Act, 1956 and having its ) registered office at 18, Ramko Apartment )
18th Road, Khar (West), Mumbai 400 052 ).. RESPONDENTS
Mr. Janak Dwarkadas a/w Mr Rahul Narichania i/b M/s B.Amin & Co. for the
Appellants.
Mr. Zubair Dada i/b S. Mahomedbhai & Co. for the Respondents.
CORAM: SWATANTER KUMAR, C.J. AND
V.M
. KANADE, J.
JUDGMENT RESERVED ON : 30TH JUNE 2008 JUDGMENT PRONOUNCED
ON : 10TH JULY 2008
-2-
JUDGMENT : (PER SWATANTER KUMAR, C.J.)
A simple but question of some legal importance falls for
consideration in the present Appeal. What is the scope of judicial
discretion of a Court trying a Suit on the Original Side of this Court with
reference to Rules 89 to 91 and 265 of the High Court, Original Side,
Rules, 1980 (hereinafter referred to as "the Rules") read with Order VIII
Rules 1 and 10 of the Code of Civil Procedure, 1908 ? It is a settled
canon of civil jurisprudence that wide discretion is vested with the Court
and with the aid of its inherent powers Court can pass orders which
may be necessary to achieve the ends of justice. The rules of
procedural law are not to scuttle the rights of the parties at the threshold
of the proceedings unless an indefeasible right is vested in the other
side and it will cause great injustice or prejudice to that party. Exercise
of such judicial discretion has to be in consonance with the settled
principles of law, amongst which, it is also a settled principle of law that
power of the appellate court to examine the legality, correctness or
otherwise of a discretionary order is a limited one and unless such
order was perverse, contrary to the statute or where the discretion had
been exercised in patent violation to the settled percepts of law, -3-
Appellate Court may not interfere.
2. The argument raised by the Appellants in the present Appeal
is that the learned Single Judge has passed the impugned order in
exercise of discretionary power contrary to the specific provision of law
as no special circumstances had been shown by the Defendant
Applicant, who had taken out Notice of Motion No.1303 of 2008, seeking
condonation of delay in filing the Written Statement. We may refer to
the facts giving rise to the present Appeal as under.
3. The Appellants in the Appeal filed a Suit for specific
performance of an Agreement dated 1st April 1999 in relation to the
property consisting of land admeasuring 1672.25 sq. mtrs. situate at
257, S.V. Road, Bandra (West), Mumbai and the construction raised
thereupon consisting of basement, ground and five upper floors. In
addition to the relief for specific performance, the Appellants also
claimed a declaration that termination of the said Agreement by the
Respondents in the Appeal was illegal and there was a valid, subsisting
and binding Agreement. Obviously the Appellants had stated that they
were willing and ready to perform their part of the contract and it was for -4-
the fault of the Respondents who were not discharging their
responsibilities under the Agreement, his part could not be performed.
The Writ of Summons was served on the Defendants in April 2001, who
in turn filed Vakalatnama in August 2001. It is noticed in the impugned
order that the same was misplaced from the Court record and fresh
Vakalatnama was filed. The Written Statement was not filed within
time. The Respondents had taken out Chamber Summons Nos. 11 of
2002 for inspection. This inspection related to the documents which had
been given by the Plaintiffs in another proceedings between the parties
and this Chamber Summons was later on withdrawn on 6th June 2006.
Number of cases were pending between the same parties. Thereafter
the Appellants filed Notice of Motion No.1223 of 2007 on 30th March
2007 praying that the Court should pass the judgment for want of
Written Statement with costs. This Notice of Motion remained pending
and the RespondentsDefendants on 3rd April 2008 had taken out
Notice of Motion No.1303 of 2008 praying for condonation of delay
caused in filing the Written Statement and for taking the same on
record. This application of the Respondents was contested by the
Appellants vehemently. In the affidavit in support of the Notice of
Motion of the Respondents, it was stated that writ of summons was -5-
served upon the Respondents on 20th April 2001 and details of nearly 7
proceedings pending between the parties were given. Chamber
Summons was taken out for inspection of the original documents in
various proceedings. The Appellants had filed a Suit being Suit No.219
of 2000 which was also withdrawn. The Appellants had filed various
proceedings in different Suits together with the Notices of Motion which
later were withdrawn. It was also stated that due to genuine oversight
by the Advocate, the Written Statement was not filed in the present Suit
and the Respondents tendered unconditional and irreversible apology
for the said oversight and prayed that the delay in filing the Written
Statement be condoned and the same be taken on record. According
to the Appellants, no reason had been stated which could form a
specific or sufficient ground for condoning the delay. Once the Written
Statement was not filed within ten weeks, the Appellants were entitled
to a decree and the Court could not have extended the time for filing the
Written Statement in face of the provisions referred by us at the very
outset of the judgment. The Court had not granted any further time by
a specific order to file Written Statement and the period contemplated
under the Rules had since been expired, the Court was divested of its
discretion to condone the delay any further. In fact, Notice of Motion -6-
No.1223 of 2007 filed by the Appellants should have been allowed
which, in fact, has not even been considered by the learned Single
Judge in the impugned order.
4. As is evident from the order impugned in the present Appeal,
the Court has only dealt with and disposed of Notice of Motion No. 1303
of 2008 and Notice of Motion No. 1223 of 2007 is not subject matter
dealt with in the order impugned in the present Appeal. Thus, we are
really not concerned with Notice of Motion No.1223 of 2007 which is still
pending before the learned Single Judge.
5. In terms of Rule 88 of the Rules, wherever the Written
Statement is called for by the writ of summons, the Defendant in an
ordinary Suit shall file an appearance in person or a Vakalatnama within
twelve weeks from the date of the service of Writ of Summons. Under
Rule 89, if the Defendant commits any default in filing his appearance in
person or in filing a Vakalatnama and Written Statement as required
under Rule 74 of the said Rules, the Judge in Chambers may, when the
Suit appears in the Court for directions, direct that the Suit be set down
on board for disposal as an undefended Suit on the same day or on -7-
such other day as the Court deems fit. It is obligatory on the Plaintiff
in the Suit to take out an application for want of Written Statement by
way of Notice of Motion praying for judgment. No such Notice of Motion
shall be issued before the date of which the writ of summons is
returnable and once affidavit of service of Notice of Motion is filed, the
Suit shall be set down on daily board for the purpose of such
application. Even where a Suit has not been set down as undefended
against the Defendant, the Defendant shall not be allowed to appear
and defend it at the trial except with the leave of the Court or the Judge
in Chambers. Leave could be granted to file Written Statement,
application for giving discovery on payment of costs of adjournment as
a condition precedent to defend or to such terms as the Court may
deem fit and proper. Besides this requirement of Rule 91, Rule 265
vests wide powers in the Court to enlarge the prescribed time. The said
Rule reads as under :
"265. Power of Court or Judge to enlarge or abridge time. The Court or
the Judge in Chambers shall have power to enlarge or abridge the time appointed
by these rules or fixed by any order for doing any act or taking any
proceedings, upon such terms (if any) as the justice of the case may require,
and any such enlargement may be ordered although the application for the same is
not made until after the expiration of -8-
the time appointed or allowed."
The language of Rule 265 indicates the wide discretion that the framers
of the Rule intended to vest in the Court. Wherever the time is
prescribed under these Rules or time or date is fixed for doing any act,
the Court may enlarge the time upon such terms and as the justice of
the case may require even if the application was not filed till the
expiration of the specified time.
6. The expression `Justice of the case may require' is equivalent
to `
in the interest of justice'
or `ends of justice'.
Thus, the paramount
consideration under the scheme of the rules is to achieve justice rather
than frustrate rights of the parties on technical ground, particularly when
the rights of the other party can be protected by such terms as may
appear in the opinion of the court to be just and proper. The High Court,
Original Side rules, which will prevail and take precedence over the
provisions of the Civil Procedure Code, also indicate that the provisions
under the Rules are not as stringent as the provisions of the Code in
regard to the defaults. The scheme of the High Court, Original Side
Rules is that where the written statement is not filed as contemplated -9-
under Rule 74, the course is not provided that a decree will follow as a
natural consequence or automatically. The court is still to fix the suit as
undefended and then pass such orders as it may deem fit and proper in
the facts of the case including requiring the plaintiff to prove his claim.
This may result in passing of a judgment and a decree but even before
that stage, the defendant has been given liberty to take out a notice of
motion for permission to file written statement and taking such other
pleas in the suit which can be allowed by the court subject to such terms
and conditions as may be deemed fit and proper in terms of Rule 91 of
the said Rules. Interestingly, the provisions of Rule 265 are in addition
to and not in derogation to the relevant provisions contained in Rules 88
to 91. Rule 266, in fact, completely dilutes the impact of specified
period provided under other rules where the parties by consent in writing
can enlarge the time for amending or filing pleadings or of filing and
delivery of documents. This could be done without application to the
court or even the Judge in chambers. It is apparent that the period
indicated in these rules is directory and not mandatory. It is directory
even to the extent of providing different options to the court and the
parties can even get liberty to enlarge the time fixed by consent. -10-
7. We have just noticed that the provisions of the abovereferred
rules are alike the provisions of Rule 1 and Rule 10 of Order 8 though
they are not identical. The language of these provisions has not even
been worded as stringently as the provisions of the Code where the
written statement is required to be filed under Order 8 within 30 days
from the date of service of summons and maximum within 90 days. The
provisions do not give any specific power to the court to extend the time
beyond 90 days. Despite the use of such language in the provisions of
the Code, the judicial discretion of the court to extend time has been a
matter of legal scrutiny for quite some time and now, the law is well
settled that in special circumstances, the court can even extend the time
beyond the period of 90 days specified under Rule 1 Order 8. It will be
useful to refer to the judgment where after discussing with some
elaboration the judgments of the Supreme Court and other High Courts
in the case of Indian Institute of Public Opinion Pvt. Ltd. v. Gopal
Krishnan and another, 2006 (126) Delhi Law Times, 655, a Bench of
Delhi High Court recorded the following findings:
"....... In order to make the facts clear, reference to the order of
the Registrar dated 25th March, 2004 would be more appropriate, but vide that
order the right of the plaintiff had not been closed by the order -11-
of the Court. The Joint Registrar did not forfeit the right of the plaintiff to
file written statement to the counter claim of the defendant, but only noticed
it that no further opportunity can be granted to the plaintiff. The JR just
stopped on passing an order to that effect, observing that the decree should be
passed in terms of the provisions of Order 8 Rule 10 CPC in favour of the
defendant or that the right of the plaintiff is forfeited. In fact the intent of
the order was that the case be listed before the Court for appropriate
directions. The doubt has been raised as to the competency of the Registry to
pass an effective order for noncompliance or otherwise in relation to provisions
of Order 8 Rule 10 relating to to filing of the written statement. It is not
necessary for the Court to go into this question in the present case and that
too at this stage of the proceedings.
Suffice it to note that no effective order has been passed
pronouncing a judgment against the plaintiff for noncompliance of the Order 8
Rule 10 CPC nor that the right stand forfeited. This order could be passed by
the Court in its wisdom. The Court approved the order of the Joint Registrar and
permitted the suit as well as the counterclaim to be proceeded further in
accordance with law i.e. for admission/denial of documents and framing of
issues. The provisions of Order 8 Rule 10 of the CPC are directory being part of
the procedural law. They are not mandatory provisions which leaves no element of
discretion with the Court in regard to passing an order as the Court may deem
proper in the given facts. Reference can be made to the judgment of this Court
in the case of Indradhanush TV Pvt. Ltd. Vs. National Film Development
Corporation Ltd. ( S.No.232/2004 ) decided today itself where the Court after
discussing and applying the judgment of the Supreme Court on facts held as under
:
-12-
"Whether the provisions of Order 8 Rules 1 and 10 of the Code are
directory/regulatory or are mandatory is not more res integra and has been
squarely answered by the Supreme
Court in the case of Kailash Vs. Nanhku and
Others (2005) 4 SCC 480 where the Supreme Court considered at great length the
historical background of introduction of the amended provisions of Order 8 in
the Code
and their effect. It was held by the Court :
"41. Considering the object and
purpose behind enacting Rule 1 of Order 8 in the present form and the context in
which the provision is placed, we are of the opinion that the provision has to
be construed as directory and not mandatory. In exceptional situations, the
court may extend the time for filing the written statement through the period of
30 days and 90 days, referred to in the provision, has expired. However, we may
not be misunderstood as nullifying the entire force and impact the entire life
and vigour of the provision. The delaying tactics adopted by the defendants in
law courts are not proverbial as they do stand to gain by delay. This is more so
in election disputes because by delaying the trial of election petition, the
successful candidate may succeed in
enjoying the substantial part, if not in its entirety, the term for which he was
elected even though he may lose the battle at the end. Therefore, the Judge
trying the case must handle the prayer for adjournment with
firmness. The defendant seeking extension of time beyond the limits laid down by
the provision may not ordinarily be shown indulgence.
-13-
42. Ordinarily, the time schedule
prescribed by Order 8 Rule 1 has to be honoured. The defendant should be
vigilant. No sooner the writ of summons is served on
him he should take steps for drafting his defence and filing the written
statement on the appointed date of hearing without waiting for the arrival of
the date appointed in the summons for his appearance in the Court. The extension
of time sought for by the defendant from the Court whether within 30 days or 90
days, as the case may be, should
not be granted just as a matter of routine and merely for the asking, more so,
when the period of 90 days has expired. The extension can be only by way of an
exception and for
reasons assigned by the defendant and also
recorded in writing by the court to its satisfaction. It must be spelled out
that a departure from the time schedule prescribed
by Order 8 Rule 1 of the Code was being allowed to be beyond the control of the
defendant and such extension was required in the interest of justice, and grave
injustice would be occasioned if the time was not exercised.
43. A prayer seeking time beyond
90 days for filing the written statement ought to be made in writing. In its
judicial discretion exercised on wellsettled parameters, the court may indeed
put the defendants on terms including imposition of compensatory costs and may
also insist on an affidavit, medical certificate or other documentary evidence
(depending on the facts and circumstances of a given case) being annexed with
the application seeking extension of time so as to convince the court -14-
that the prayer was founded on grounds which do exist.
44. The extension of time shall be
only by way of exception and for reasons to
be recorded in writing, howsoever brief they may be, by the court. In no case,
shall the defendant be permitted to seek extension of
time when the court is satisfied that it is a case of laxity or gross negligence
on the part of the defendant or his counsel. The court may impose costs for dual
purpose : (i) to deter the defendant from seeking any extension of time just for
the asking, and (ii) to compensate the plaintiff for the delay and inconvenience
caused to him.
45. However, no straitjacket
formula can be laid down except that the observance of time schedule
contemplated by
Order 8 Rule 1 shall be the rule and departure therefrom an exception, made for
satisfactory reasons only. We hold that Order 8 Rule 1, though couched in
mandatory form,
is directory being a provision in the domain of processual law."
Still in a more recent judgment
again the Supreme Court in the case of Smt.
Rani Kusum Vs. Smt. Kanchan Devi and Ors. JT 2005 (7) 409 discussed the
principles governing provisions of Order 8 in the above regard with some
elaboration and held as under :
"Next, there must be ever present
to the mind the fact that our laws of procedure are grounded on a principle of
natural justice which requires that men should not be -15-
condemned unheard, that decision should not
be reached behind their backs, that proceedings that affect their lives and
property should not continue in their absence and that they should not be
precluded from participating in them. Of course, there must be exceptions and
where they are clearly defined they must be given effect to. But taken by and
large, and subject to that proviso, our laws of procedure should be construed,
wherever that is reasonably possible, in the light of that principle."
In Topline Shoes Ltd. v.
Corporation Bank (JT 2002 (5) SC 111), the
question for consideration was whether the State Consumer Disputes Redressal
Commission could grant time to the respondent to file reply beyond total period
of 45 days in view of Section 13(2) of the Consumer Protection Act, 1986. It was
held that the intention to provide time frame to file reply is really made to
expedite the hearing of such matters and avoid unnecessary
adjournments. It was noticed that no penal consequences had been prescribed if
the reply is not filed in the prescribed time. The provision was held to be
directory. It was observed that the provision is more by way of procedure to
achieve the object of speedy disposal of the case.
The use of the word "shall" in Order
VIII Rule 1 by itself is not conclusive to determine whether the provision is
mandatory or directory. We have to ascertain the object which is required to be
served by this -16-
provision and its design and context in which it is enacted. The use of the word
"shall" is ordinarily indicative of mandatory nature of the provision but having
regard to the intention of the legislation, the same can be construed as
directory. The rule in question has 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 or procedure are handmaid of
justice and not its mistress. In the present context, the strict interpretation
would defeat justice.
In construing this provision, support
can also be had from Order VIII Rule 10 which provides that where any party from
whom a written statement is required under Rule 1 or Rule 9, fails to present
the same within the time permitted or fixed by the Court, the Court shall
pronounce judgment against him, or make such other order in relation to the suit
as it thinks fit. On failure to file written statement under the provision, the
Court has been given the discretion either to pronounce judgment against the
defendant or
make such other order in relation to suit as it thinks fit. In the context of
the provision, despite use of the word ` shall' , the court has been given the
discretion to pronounce or not to pronounce the judgment against the defendant
even if written statement is not filed and instead pass such order as it may
think fit in relation to the suit. In construing the provision of Order VIII
Rule 1 and Rule 10, the doctrine of harmonious construction is required to be
applied. The effect would be that under Rule 10 of Order VIII, the court in -17-
its discretion would have power to allow the defendant to file written statement
even after expiry of period of 90 days provided in Order VIII Rule 1. There is
no restriction in Order VIII Rule 10 that after expiry of ninety days, further
time cannot be granted. The Court has wide power to ` make such order in
relation to the suit as it thinks fit' Clearly, .
therefore, the provision of Order VIII Rule 1 providing for upper limit of 90
days to file written statement is directory. Having said so, we wish to make it
clear that 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."
18. The Bench in para 54 after considering the Committee' report has observed
as s
follows :
"Having regard to the constitutional
obligation to provide fair, quick and
speedy justice, we direct the Central
Government to examine the
aforesaid suggestions and submit a
report on this Court within four
months."
19. After elaborating the purpose for introduction of Order VIII Rule 1, this
Court in Kailash's case (supra) at paragraph 45 observed that no straightjacket
formula can be laid down except that observance of time
-18-
schedule contemplated by Order VIII Rule 1
shall be the rule and departure therefrom an exception, made for satisfactory
reasons only. The conclusions have been summed up in para 46. The relevant
portion reads as follows:
"(iv) the purpose of providing the time schedule for filing the written
statement under Order VIII Rule 1 CPC is to expedite and not to scuttle the
hearing. The provision spells out a disability on the defendant. It does not
impose an embargo on the power of the Court to extend the time. Though the
language of the proviso to Rule 1 Order VIII CPC is couched in negative form, it
does not specify any penal consequences flowing from
the noncompliance. The provision being in the domain of the procedural law, it
has to be held directory and not mandatory. The power of the Court to extend
time for filing the written statement beyond the time schedule provided by Order
VIII Rule 1 CPC is not completely taken away.
(v) Though Order VIII Rule 1 CPC is a part of procedural law and hence
directory, keeping
in view the need for expeditious trial of civil cases which persuaded Parliament
to enact the provisions in its present form, it is held that ordinarily the time
schedule contained in the provision is to be followed as a rule and departure
therefrom would be by way of exception. A prayer for extension of time made by
the defendant shall not be granted
just as a matter of routine and merely for asking, more so when the period of 90
days
has expired. Extension of time may be allowed by way of an exception, for
reasons
-19-
to be assigned by the defendant and also be
placed on record in writing, howsoever briefly, by the court on its being
satisfied. Extension of time may be allowed if it is needed to be given for
circumstances which are
exceptional, occasioned by reasons beyond the control of the defendant and
grave injustice would be occasioned if the time was not extended. Costs may be
imposed and affidavit or documents in support of the grounds pleaded by the
defendant for extension of time may be demanded, depending on the facts and
circumstances of
a case.".
In view of the above recent
judgments of the Supreme Court hardly any
controversy need to be entertained in regard to the application of these
provisions in law. What is significant is applying these provisions to the facts
and circumstances of each case."
Applying to above principles to the facts of the present case and
particularly in view of the fact that no application itself was filed by the
defendants for passing a decree under Order 8 Rule 10 CPC in relation to the
counter claim raised in the written statement for all this period, I am of the
considered view that it will be causing grave injustice and hardship to the
plaintiff if the written statement which has already been on the record of the
file since May, 2004 is not permitted to be taken on record and the delay in
filing the written statement from March, 2004 to May, 2004 is not condoned. That
result is also directly attributable to the plaintiff but was an error on the
part of counsel who made a statement on 4th and 25th March, 2004 that written
statement to the counter claim has already been filed. These are some -20-
peculiar circumstances which would tilt the equity more in favour of
the applicant rather than the plaintiff who himself was not vigilant of the
right of the benefit which would accrue to him under the provision of Order 8
Rule 10 CPC.
In view of my above discussion 1A 6210/2004 is allowed
and the delay in filing the written statement is condoned. The written statement
to the counter claim of the plaintiff which has already been filed, is ordered
to be taken on record. The IA is accordingly disposed of while leaving the
parties to bear their own costs. The defendant may file replication to the
written statement filed by the plaintiff to the counterclaim of the defendant
within four weeks from today with advance copy to the other side."
8. Reference can also be made to the judgment of the Supreme
Court in Salem Advocate Bar Association, T.N. vs. Union of India,
(2005) 6 SCC 344, where the Supreme Court with emphasis enunciated
the law that the word "shall" appearing in proviso to Order VIII Rule 1 on
its plain reading may appear to be mandatory but after examining it in its
true context and having regard to the intention of the legislature, the
same can be construed as directory. Discretion of the Court to extend
the time shall not be used so frequently and routinely as to nullify the
period fixed by Order 8 Rule 1, but wherever it is necessary the Court -21-
can exercise the power as there is no restriction in Order 8 Rule 10 that
after expiry of the 90 days, further time cannot be granted by the Court.
The Court has wide powers to make such order in relation to the Suit as
it thinks fit. Use of this expression sufficiently indicate that the power of
the Court is not restricted by the provisions of the Code. It also
deserves to be noticed that the provisions of Order VIII Rule 1 requires
the Defendant to file the Written Statement within 30 days and in terms
of the proviso not later than 90 days from the date of service of
summons. As far as Bombay High Court is concerned, this provision
has been amended and in terms of the provisions of law applicable to
Bombay High Court, the Defendant may and if so required by the Court
shall within such time as may be specified in this behalf and within such
extended time as the Court may permit present Written Statement of his
defence after serving a copy thereof on the Plaintiff or his Pleader.
Ordinarily, such period shall not exceed four weeks which would not be
extended except for reasons to be recorded in writing. Thus, even in
terms of this provision, the extension of time is a matter in the discretion
of the Court and could be granted for justifiable reasons recorded in
writing.
-22-
9. A similar view was taken by the Supreme Court in a very
recent judgment in Zolba vs. Keshao and others, 2008 AIR SCW 2739,
where the Supreme Court held as under :
" The use of the word `s in Order 8 Rule 1 hall'
by itself is not conclusive to determine whether the provision is
mandatory or directory. We have to ascertain the object which is required to be
served by this provision and its design and context in which it is enacted. The
use of the word `s hall' is ordinarily indicative of mandatory nature of the
provision but having regard to the context in which it is used or having regard
to the intention of the legislation, the same can be construed as directory. The
rule in question has 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 or procedure are handmaid of justice
and not its mistress. In the present context, the strict interpretation would
defeat justice."
10. In the case of Iridium India Telecom Ltd. vs. Motorola Inc.,
(2005) 2 SCC 145, the Supreme Court approved the earlier view taken
that the Rules framed by the High Court on its Original Side will prevail
over the provisions of Civil Procedure Code in the event of conflict. It
was held that Bombay High Court, Original Side, Rules, 1957 having
been enacted in furtherance to Section 129 of the 1882 Code having a -23-
non obstante clause will prevail over the provisions of the Civil Procedure
Code as it is indicative of Parliament' intention to prevent the s
application of Civil Procedure Code in respect of civil proceedings on
the Original Side of the chartered High Courts. Besides this, we also
find no conflict in the provisions of Order 8 Rule 1 and the Original Side
Rules of this Court. They can undoubtedly be construed harmoniously.
They are the provisions which regulate the period for filing of the Written
Statement, default thereto, and power of the Court to condone and/or
extend the delay. Wide power is vested in the Court to condone the
delay under the Rules and there is no justification for giving such a strict
interpretation to these procedural Rules that they would frustrate very
object of doing justice. At the cost of repetition, but without hesitation,
we can note that the Original Side Rules of this Court do not invite any
interpretation which can persuade us to accept the contention on behalf
of the Appellants that after the expiry of the period provided, the Court
cannot condone the delay and permit the Written Statement to be taken
on record.
11. In the present case, the Suit was pending before the Court.
Written Statement admittedly was not filed within the period of twelve -24-
weeks from the date when Writ of Summons was served upon the
Respondents in the Appeal. Notice of Motion was taken out for
judgment by the Appellants prior to the filing of the Notice of Motion by
the Respondents for condonation of delay in filing the Written
Statement. The reasons, as already noticed, were that by a bona fide
mistake the Written Statement was not filed within the time prescribed
and because of multifarious litigations pending between the parties, this
mistake could not be noticed. Furthermore, the Power of Attorney
(Vakalatnama) filed on record is alleged to have been misplaced. Prior
to this, the Respondents had taken out Chamber Summons for
inspection of documents in the year 2002. This application remained
pending for a considerable time and was withdrawn in June 2006, where
after the Notice of Motion for condonation of delay was filed. Even
assuming for the sake of argument that these reasons by themselves
may not be sufficient reasons for extending the period or condoning the
delay in filing the Written Statement, subsequent events in the Suit
would show that no serious prejudice is being caused to the Appellants
inasmuch as no orders had been made for a considerable time on the
Notice of Motion taken out for judgment by the Appellants. In fact, the
Appellants did not even press this application for quite sometime as the -25-
Notice of Motion for condonation of delay was taken out nearly a year
later to that filed by the Appellants. The application for judgment was to
be listed for disposal in accordance with the prescribed procedure of
Rules 88 to 91 of the Rules and after hearing the parties, the Court
could pass a decree or even pass any other order as it may deem fit
and proper in the facts and circumstances of the case. From the record,
it appears that somewhere in August 2007, the Defendants had even
sent Draft Issues to the Appellants after filing their application for
condonation of delay which was replied to vide their letter dated 27th
August 2007 stating that the Respondents could not proceed by giving a
Draft Issues as Notice of Motion No. 1223 of 2007 was pending.
12. The learned Counsel appearing for the Appellants while
relying upon the judgment of this Court in the case of Tardeo Properties
Pvt. Ltd. vs. Bank of India, 2007 (5) Bom. C.R. 557, argued to say that
the Court should have pronounced the judgment in default of filing of
Written Statement and could not condone the delay. We are unable to
deduce any such principle from the aforesaid Division Bench judgment
of this Court. On the contrary, the judgment clearly states that the
provisions of the Original Side Rules would be applicable and have -26-
precedence over the Rules of CPC and the Court held "there is thus no
case for pronouncing a judgment merely because there is failure on the
part of the Defendant to file a Written Statement". In other words, only
option which would be available to the Court would be to ask the Plaintiff
to prove the case before the pronouncement of the judgment.
13. It is also contended on behalf of the Appellants that no regret
is shown for such inordinate delay by the Respondents and the reason
given for condonation of delay is vague. Firstly, it is not factually
correct. In the affidavit filed at page 7 of the paperbook, the
Defendants have recorded the inordinate delay and has stated it to be
attributable to a bona fide error appearing on the part of the Advocates
and for which the learned Single Judge has imposed sufficient costs of
Rs.50,000/ as compensatory costs for the unnecessary delay caused
by the Respondents. The discretion is vested in the Court to pronounce
a judgment after hearing the parties or even at that stage to pass such
other orders as the Court may deem fit and proper. With respect, we
follow the view taken by the Division Bench of this Court in the case of
Tardeo Properties Pvt. Ltd. (supra) to say that it is not an automatic result
of default in filing the Written Statement within twelve weeks that -27-
necessarily a decree will follow in favour of the Plaintiff (Appellants).
The learned Judge has exercised discretion and has weighed the
equities between the parties by imposition of heavy costs. This
discretion does not call for interference merely on the ground that the
Court could have taken a different view than the one expressed by it.
The Appellate Court would normally not interfere in exercise of judicial
discretion unless it was patently unjust or ex facie perverse. The
present case does not fall in any of these categories and the impugned
order in any case is not contrary to law.
14. The learned Counsel appearing for the Respondents while
relying upon the judgment of the Supreme Court in the case of Shah
Babulal Khimji vs. Jayaben D. Kania and another, (1981) 4 SCC 8AIR
1981 SC 1786, argues that the present Appeal of the Appellants was
not maintainable inasmuch as the Appeal was against an interlocutory
procedural order and thus was not a judgment within the meaning of
Clause 15 of the Letters Patent. The contention is that by the impugned
order only time for filing the Written Statement has been extended
and/or condoned that amounts to passing an order which is purely
interlocutory and cannot constitute a judgment. Parties can always -28-
raise a grievance against the order while preferring an Appeal against
the final judgment. Emphasis was placed on paragraph 114 of the
judgment.
15. No doubt it is a settled position of law that orders which are
merely procedural where there is no determination of rights and
obligation of the parties would hardly be prejudicial to the rights of a
party in the pending lis and, therefore, would be orders not appealable
because they would not be a judgment within the meaning of Clause 15
of the Letters Patent. In the above referred paragraph of the judgment
in the case of Shah Babulal Khimji (supra), the Supreme Court itself
noticed that an order refusing an adjournment, an order of refusing to
summon additional witness, condonation of delay in filing documents
are orders of routine nature and those are procedural interlocutory
orders. They are steps to be taken for prosecution of the Suit
simplicitor.
16. In the present case, it cannot be said that order passed on a
Notice of Motion for condonation of delay in face of Rules 89 to 91 and
265 of the High Court Original Side Rules read with Order 8 Rule 1 of -29-
the CPC, would be a mere procedural order or an order merely a step in
prosecution of the Suit. The result of this order would have very serious
consequences on the right and obligation of the parties. In the event the
application for condonation was declined, the Appellants would have
been entitled to a judgment as in terms of its Notice of Motion No.1223
of 2007. The parties were heard, the Court applied its mind and by a
detailed order exercised its judicial discretion in extending the time for
filing the Written Statement, which, but for the leave of the Court, could
not have been filed after the expiry of twelve weeks from the date of Writ
of Summons was served upon the Respondents. Thus, it was a
determination by the Court on a material aspect of the Suit which, if
declined, could even result in final disposal of the Suit. The Suit had
already been listed as undefended Suit as per the Original Side Rules
and the rights of the parties were affected as a result of passing of the
impugned order. It could even be equated to a situation where leave to
defend is either granted or refused under the provisions of Order 37 of
the CPC which is said to be a judgment within the meaning of Clause 15
of the Letters Patent and which would be appealable. In this regard,
reference can be made to a recent Full Bench judgment of this Court in
the case of M/s.Emkay Exports and another vs. Madhusudan Shrikrishna, -30-
Appeal No.370 of 2007 in Summons for Judgment No. 669 of 2003
in Summary Suit No.2171 of 2004, decided on 26th June 2008, where
the Court held as under :
29. Let us examine some of the judgments which would throw some light
in relation to the principles involved in the present case. Right from the case
in Shah Babulal Khimji vs. Jayaben D. Kania and another, AIR 1981 SC 1786, the
Court discussed in detail the meaning of the word "judgment" appearing in Clause
15 of the Letters Patent and its scope. The basic test to determine as to
whether an order would be a judgment within the meaning of the clause or not,
being the order which decide matters of moment or affect vital and valuable
right of the parties and which will cause serious injustice to the parties
concerned would normally be judgment within the meaning of the charter and thus
appealable. The Supreme Court clearly stated that an order refusing leave to
defend the Suit under Order 37 would be an order which would be covered under
the scope of judgment.
30. Satyadhyan Ghosal and others vs. Smt. Deorajin Debi and another,
AIR 1960 SC 941, was a case where the Court noticed that principle of res
judicata is based on the need of giving a finality to a judicial decision and
once a res is adjudicated, it shall not be adjudged again. The purpose is to
prevent the parties from reagitating issues over and over again. In that case
where the landlord had obtained a decree for ejectment against the tenant, an
application under Order 9 Rule 13 for setting aside the decree was filed -31-
which was dismissed and thereafter an application was made by the tenant under
Section 28 of the Calcutta Thika Tenancy Act who prayed for assignment of the
decree. While determining the plea of res judicata, the Court squarely dealt
with the question whether the interlocutory orders which were not appealable or
where no appeal was preferred could or could not be challenged in the final
decree preferred. The Court held as under :
"16. It is clear therefore that an interlocutory order which
had not been appealed from either because no appeal lay
or even though an appeal lay an appeal was
not taken could be challenged in an appeal from the final decree or order. A
special provision was made as regards orders of remand and that was to the
effect that if an appeal lay and still the appeal was not taken the correctness
of the order of remand could not later be challenged in an appeal from the final
decision. If however an appeal did not lie from the order of remand the
correctness thereof could be challenged by an appeal from the final decision as
in the cases of other interlocutory orders. The second subsection did not apply
to the Privy Council and can have no application to appeals to the Supreme
Court, one reason being that no appeal lay to the Privy Council or lies to the
Supreme Court against an order of remand."
31. No provision has been brought to our notice which on its plain language or
even by necessary implication, would support the view that the orders made
during the pendency of the suit, particularly orders under Rule 3 of Order 37
which ultimately may result into passing of the decree, cannot be assailed or
-32-
challenged in an appeal against the decree. The appellant challenging the final
decree can safely argue that the orders passed during the pendency of the suit
ought not to have been passed and the judgment could not have been pronounced.
However, this is subject to the condition that the orders made during the
pendency of the suit were not affirmed by the appellate court or court of higher
jurisdiction in an appeal taken out by the aggrieved party against whom finally
a decree is made. The doctrine of finality and principles of res judicata,
constructive or otherwise, would justify introduction of such an exception. The
parties cannot be permitted to agitate and reagitate the same issues which have
attained finality at different stages of the suit or even in an appeal. This can
be viewed from another angle. During the pendency of the suit different kinds of
orders could be passed, the ones which are interlocutory orders of procedural
nature hardly have any bearing on the matters in issue or on the rights of the
parties, while the others are interlocutory orders which determine the
controversy and affect the rights of the parties to the suit. Such orders could
prejudice the interest of the party against whom they are passed. The former
class of orders which are not appealable under Order 43 would also not be
appealable with the aid of clause 15 of the Letters Patent, while the later
class of orders would be appealable under either of the statutory provisions. We
have already discussed in some detail the orders which would squarely fall
within the ambit of expression "judgment" in clause 15 of the Letters Patent.
Does it mean that the party is bound to appeal every interlocutory order which
even may be a step in the procedure that leads to a final decree? This question
was answered in the negative by the Privy Council in Sheonoth v. Ramnath, (1865)
10 MIA 413 and explained by the Supreme Court in Achal Misra v. Rama Shanker
Singh, (2005) 5 SCC 531. The Supreme Court held as under:
-33-
"13. This principle is
recognised by Section 105(1) of the Code of
Civil Procedure and reaffirmed by Order 43 Rule 1A of the Code. The two
exceptions to
this rule are found in Section 97 of the Code of Civil Procedure, 1908, which
provides that a preliminary decree passed in a suit could not be challenged in
an appeal against the final decree based on that preliminary decree and Section
105(2) of the Code of Civil Procedure, 1908 which precludes a challenge
to an order of remand at a subsequent stage
while filing an appeal against the decree passed subsequent to the order of
remand. All these aspects came to be considered by
this Court in Satyadhyan Ghosal v. Deorajin Debi wherein, after referring to the
decisions of the Privy Council, it was held that an interlocutory order which
had not been appealed from either because no appeal lay
or even though an appeal lay, an appeal was
not taken, can be challenged in an appeal from a final decree or order. It was
further held that a special provision was made in Section 105(2) of the Code of
Civil Procedure as regards orders of remand where the order
of remand itself was made appealable. Since Section 105(2) did not apply to the
Privy Council and can have no application to appeals to the Supreme Court, the
Privy Council and the Supreme Court could examine even the correctness of an
original order of remand while considering the correctness of the decree passed
subsequent
to the order of remand. The same principle was reiterated in Amar Chand Butail
v. Union of India and in other subsequent decisions." -34-
32. In a more recent judgment in the case of Employer in Relation to Management
of Central Mine Planning and Design Institute Ltd. v. Union of India and
another, AIR 2001 SC 883, in view of the expression "judgment" occurring in
clause 10 of the Letters Patent of the High Court of Judicature at Patna, the
Supreme Court stated that interlocutory order dealing with an application under
section 17B of the Industrial Disputes Act would be a judgment and appeal would
lie and the test of section 2(9) of the Code of Civil Procedure would not
operate stricto senso in examining the scope of judgment under clause
10. The court held as under:
.............................
"8. A close reading of the
provision, quoted above, shows that it has three limbs : the first limb
specifies the type of judgments of one Judge of the High Court which is
appealable in that High Court and the categories of judgments/orders which are
excluded from its ambit: the second limb provides that notwithstanding anything
provided in the first limb, an appeal shall lie to that High Court from judgment
of one Judge
of the High Court or one Judge of any Division Court, pursuant to Section
108 of the Government of India Act (now Article 225 of
the Constitution of India), on or after February 1, 1929, passed in
exercise of appellate jurisdiction in respect of a decree or order made in
exercise of appellate jurisdiction by a Court subject to the superintendence of
the said High Court where the Judge who passed
the judgment declares that the case is a fit one for appeal; and the third
limb says that -35-
the right of appeal from other judgments of Judges of the said High Court or
such Division Court shall be to "us, our heirs or successors in our or their
Privy Council, as hereinafter provided".
........................
10. The above analysis of Clause 15 of the Letters patent will equally apply to
Clause 10 of the Letters Patent of Patna. It follows that an appeal shall lie to
larger Bench of the High Court of Judicature at Patna from a judgment of one
judge of the said High Court or one judge of any Division Court pursuant to
Article 225 of the Constitution of India. The following categories of judgment
are excluded from the appealable judgments under the first limb of Clause 10 of
the Letters Patent:
(i) a judgment passed in exercise of
appellate jurisdiction in respect of a decree or order made in exercise of
appellate jurisdiction by a Court subject to superintendence of the said High
Court in other words no letters patent appeal lies to the High Court from a
judgment of one judge
of the High Court passed in second appeal:
(ii) an order made by one judge of
the High Court in exercise of revisional jurisdiction; and
(iii) a sentence or order passed or
made in exercise of power under the provisions of Section 107 of Government of
India Act, 1935 (now Article 227 of the Constitution of India) or in exercise of
criminal jurisdiction.
-36-
11.................
12. The next question which needs to be considered is, what does the expression
`judgment' mean? That expression is not defined in Letters Patent. It is now
well settled that definition of ` judgment' in Section 2(9) of Code of Civil
Procedure, has no application to Letters Patent. That expression was interpreted
by different High Courts of India for purposes of Letters Patent. In Asrumati
Debi v. Kumar Rupedra Deb, Rajkot, 1953 SCR 1159: (AIR 1953 SC 198),
a fourJudge Bench of this Court considered
the pronouncements of the High Court of Calcutta in Justices of the Peace for
Calcutta v. Oriental Gas Co. (1872) 8 Beng LR 433,
the High Court of Ragoon in Dayabhai v. Murugappa Chettiar (1935) ILR 13 Rang
457:
(AIR 1935 Rangoon 267)(FB), the High Court
of Madras in Tuljaram v. Alagappa, (1912) ILR 35 Mad 1, the High Court at Bombay
in
Sonebai v. Ahmedbhai (1871) 9 Bom HCR 398 (FB), as also the High Court at
Nagpur,
the High Court at allahabad and Lahore High
Court and observed as follows:
"In view of this wide divergence of
judicial opinion, it may be necessary for this Court at some time or other to
examine carefully the principles upon which the different views mentioned above
purport to be based and attempt to determine with as much
definiteness as possible the true meaning and scope of the word ` judgment' as
it concurs in clause 15 of the Letters Patent of the Calcutta High Court and in
the corresponding clauses
of the Letters Patent of the other High -37-
Courts."
13.......................
14. In the instant case, we
are concerned with the last mentioned category. From the above
discussion, it follows that to determine the question whether an interlocutory
order passed by one judge of a High Court falls within the meaning of `judgment'
for purposes of Letters Patent the test is : whether the order is a final
determination affecting vital and valuable rights and obligations of the parties
concerned. This has to be ascertained on the facts of each case.
15. Adverting to the facts of this case, Section 17B of
the I.D. Act confers valuable rights on the workmen and correspondingly imposes
an onerous
obligations on the employer. The order in question passed by the
learned single Judge
determines the entitlement of the workmen to receive benefits and
imposes an obligation on the appellant to pay such benefits provided in the said
section. That order cannot but be `judgment' within the meaning of Clause 10 of
Letters Patent, Patna. The High Court is obviously in error in holding that the
said order is not judgment within the meaning of Clause 10 of the Letters Patent
of Patna."
17. In the case of Collector of Bombay vs. Issac Penhas, AIR (35)
1948 Bombay 103, this Court took the view that judgment under Clause -38-
15 means a decision which concludes the merits of the question
between the parties by determining some right or liability. The order
which would be appealable has to be seen in contradistinction to a
mere formal order or an order merely regulating the procedure in the
Suit. Once the order affects the rights of the parties in a substantial
manner or could result in serious prejudice to the right of a party, in
those circumstances, order could be termed as judgment. It will be
more so where the order could result into final culmination of the
proceedings by passing of a judgment as a result of the default. It could
put an end to the Suit or proceedings so far the Court before which the
Suit was pending.
18. In our considered opinion, thus the impugned order would be
appealable particularly in light of the language and consequences
flowing from default as contemplated under Rules 89 to 91 of the High
Court, Original Side, Rules and Order 8 Rule 1 of the Civil Procedure
Code. We have already discussed the merit and otherwise of the
various contentions raised before us by the parties and have answered
them in favour of the Respondents and against the Appellants.
Resultantly, the objection raised by the Respondents loses its -39-
significance and we do not wish to elaborate our discussion any further
on this issue.
19. For the reasons aforestated, we do not find any merit in the
Appeal. The same is dismissed leaving the parties to bear their own
costs.
CHIEF JUSTICE
V.M. KANADE, J.
Best Regards
Daksh
