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Nachipeddi Ramaswamy v. P. Buchi Reddy

Nachipeddi Ramaswamy v. P. Buchi Reddy

(High Court Of Telangana)

Civil Revision Petition No. 1917 Of 2002 | 17-04-2003

V.V.S. Rao, J. 1. The petitioner is the plaintiff in O.S. No. 27 of 2002 on the file of the Court of the Junior Civil Judge, Kalwakurthy. The suit was filed for recovery of money. According to the petitioner, the suit summons were served on the sole defendant/respondent herein on 10-5-2002. The defendant appeared through counsel before the Court on 13-6-2002 and the Court granted time for filing written statement from time to time. Ultimately on 9-10-2002, the defendant filed a written statement and the Court accepted the same. None the less, the petitioner filed an application being I.A. No. 390 of 2002 under Order 8 Rule 10 read with Section 151 Civil Procedure Code 1908 as amended by the Civil Procedure Code (Amendment) Act, 1999 (Act 46 of 1999) and the Civil Procedure Code (Amendment) Act 2002 (Act 22 of 2002). The petitioner prayed the trial Court to pronounce the judgment by rejecting the written statement filed by the defendant. The trial Court by the judgment order dated 3-3-2003 dismissed the petitioners application holding that the defendant filed the written statement within the time permitted by the Court and therefore a judgment cannot be pronounced as per Rule 10 Order 8 Civil Procedure Code. 2. The learned counsel for the petitioner Sri K. Srinivasa submits that Order 8, Rule 1 Civil Procedure Code as amended by Act 46 of 1999 has to be strictly interpreted having regard to the spirit with which the amendments were brought into force. According to the learned counsel, the Civil Court is not entitled to extend time beyond 30 days from the date of service of summons on the defendant/defendants for filing written statement and as the defendant has not filed the written statement within 90 days as required under Order 8 Rule 1 Civil Procedure Code, the lower Court ought to have pronounced the judgment or order. 3. This revision petition is filed under Section 115 Civil Procedure Code. As per the said section as amendment by Act 46 of 1999, the petitioner has to show that if his I.A. had been allowed, the same would have resulted in the disposal of the suit itself. As the petitioner prayed for pronouncement of the judgment and had it been allowed, it would have resulted in the disposal of the suit itself, the Civil Revision Petition is maintainable. 4. The next question is whether the court below has acted within the jurisdiction conferred on it and whether the alleged improper exercise of jurisdiction by the lower Court has resulted in miscarriage of justice to the petitioner 5. Rule 1 Order 8 Civil Procedure Code as it existed prior to Act 46 of 1999 and as it existed after amendment Act 22 of 2002 reads as under : Civil Procedure Code, 1908Civil Procedure Code, (Amendment) Act, 1999Civil Procedure Code, (Amendment) Act, 2002. The defendant shall at or before the first hearing or within such time as the court may permit, which shall not be beyond thirty days from the date of service of summons on the defendant, present a written statement of his defence.The defendant shall at or before the first hearing or within such time as the court may permit, which shall not be beyond thirty days from the date of service of summons on the defendant, present a written statement of his defence.The defendant shall within thirty days from the date of service of summons on him, present a written statement of his defence :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 same on such other day, as may be specified by the court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. 6. A reading of Rule 1 Order 8 Civil Procedure Code does not support the contention of the learned counsel for the petitioner. The normal requirement of law is that the defendant shall within 30 days from the date of service of summons, present the written statement of his defence subject to other Rules contained in Order 8. This Rule is not inflexible or rigid. This is made clear by the proviso to Rule 1 Order 8 as amended by Act 22 of 2002. It stipulates that it is competent for the Court to specify the time beyond 30 days and in any case the same shall not be later than 90 days from the date of service of summons. It is also interesting to note that Rules 8-A, 9 and 10 in the Civil Procedure Code 1908 were omitted by Act 46 of 1999 but again they were reintroduced after Act 22 of 2002. Rule 10 Order 8 reads as under : Procedure when party fails to present written statement called for by Court :- 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, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. 7. A plain reading of the above would show that if a defendant fails to present the written statement within the time permitted or fixed by the court, the court has to pronounce judgment and make such order relating to the suit as it thinks fit. The very fact that the Parliament which chose to delete Rule 10 Order 8 Civil Procedure Code again decided to reintroduce it by Act 22 of 2002 would show that Order 8 Rule 1 Civil Procedure Code as amended by Act 22 of 2002 cannot be interpreted in strict terms. Further, to my mind, Rules 1, 1(a) and 10 of Order 8 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 principal 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 has to be interpreted section by section. One Rule or one Section in the enactment cannot 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. 8. Further, Section 148 Criminal Procedure Code 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 Civil Procedure Code 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 and the Rules made thereunder. 9. In refusing the interlocutory application filed by the petitioner, the lower Court has exercised sound discretion and the same does to warrant any interference under Section 115 Civil Procedure Code. 10. The Civil Revision Petition is accordingly dismissed. Petition dismissed.

Advocate List
  • For the Petitioner K. Srinivasa, Advocate. For the Respondent --------
Bench
  • HON'BLE MR. JUSTICE V.V.S. RAO
Eq Citations
  • 2003 (1) AN.W.R. 562
  • 2003 (3) RCR (CIVIL) 459
  • 2003 (4) ALD 648
  • AIR 2003 AP 409
  • AIR 2003 AP 446
  • LQ/TelHC/2003/460
Head Note

Civil Procedure Code, 1908 — Or. 8 R. 1, as amended by Civil Procedure Code (Amendment) Act, 2002 — Defendant filing written statement within 90 days — Court granting time for filing written statement from time to time — Plaintiff filing I.A. under Or. 8 R. 10 r/w S. 151 CPC, praying for pronouncement of judgment by rejecting written statement filed by defendant — Trial Court by judgment order dismissing plaintiff's application holding that defendant filed written statement within time permitted by Court and therefore a judgment cannot be pronounced — Propriety — Held, Or. 8 R. 1 CPC, as amended by Act 22 of 2002, cannot be interpreted in strict terms — Further, Rr. 1, 1(a) and 10 Or. 8 CPC, taken together, would show that though a defendant is required to file written statement within 30 days after receipt of summons and though Court can extend time till 90 days, Court is not divested of power to fix further time for filing written statement — Further, CrPC, S. 148 empowers Court to enlarge time — Civil Court being a Court of equity, justice and good conscience, is also vested with inherent powers under S. 151 CPC to avoid miscarriage of justice — Held, lower Court exercised sound discretion and same does not warrant any interference under S. 115 CPC — Civil Procedure Code, 1908 — Or. 8 R. 1, as amended by Civil Procedure Code (Amendment) Act, 2002