Without making provision for necessary expenses of the proceedings, it would be impracticable to insist upon the defending spouse even to file written statement.
Sunil Bansal vs Meeta Bansal
Citation: 2018 (3) CHN (CAL) 497)
Calcutta High Court
Civil Revisional Jurisdiction
(Appellete Side)
C.O. 2856 of 2017
Judgment on : 11/01/2018
Acts: Order VIII Rule 1 of the Code of Civil Procedure and, Section 24 Section & 13(1)(i), (ia) and (iii) of the Hindu Marriage Act, 1955
JUDGMENT
Hon’ble Justice Harish Tandon.
Two points fell for consideration before this Court; firstly, whether the court can extend the time to file written statement beyond the period provided under Order VIII Rule 1 of the Code of Civil Procedure and secondly, whether the matrimonial suit should remain stayed until disposal of an application for alimony pendenti lite.
Shorn of unnecessary details the husband/petitioner filed a suit for dissolution of marriage by decree of divorce under Section 13(1)(i), (ia) and (iii) of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘said Act’) against the wife/opposite party. Admittedly, the summons of the suit was served upon the wife, who could not file the written statement within the time stipulated under Order VIII Rule 1 of the Code. The summons appeared to have been served upon the wife/opposite party on 22nd May 2016 and she entered appearance on 6th August 2016 and filed an application under Section 24 of the said Act for alimony pendente lite. An objection to the said application was filed by the husband/petitioner and thereafter an application was taken out seeking amendment of the application under Section 24 of the said Act filed by the wife/opposite party. Subsequently, the application for amendment was withdrawn with liberty to file a fresh application. The fresh application was filed, in terms of the leave granted by the court and the parties exchanged the affidavits.
It is not in dispute that the wife/opposite party sought for an adjournment on the first date of appearance to file the written statement and continued to ask for adjournments on diverse dates. In the midst the said suit, two applications came to be filed, one by the wife/opposite party seeking stay of all further proceedings of the suit till the disposal of the application for alimony pendente lite and the other by the husband/petitioner to fix the suit at the ex parte board as the time to file written statement has expired. In response to the said application, the wife/opposite party contended that unless the litigation cost is awarded to her, she is unable to file written statement and, therefore, the application for maintenance should be heard first and the time to file the written statement should not be extended.
The trial court rejected the application filed by the husband/petitioner thereby refusing to place the suit at the ex parte board and allowed the application filed by the wife/opposite party staying all further proceedings of the suit until disposal of the application for alimony pendente lite.
An argument was advanced before the trial court that in view of Section 21 of the said Act, the provisions contained under the Code has limited application. The trial court noticed various judgments of the Supreme Court and the law enunciated therein to the effect that the provisions contained under Order VIII Rule 1 of the Code is not mandatory but directory in nature. The trial court further noticed the language used in Section 21 of the said Act providing the applicability of the Code within the limited compass because of the expression “as far as possible”. It is ultimately held that the Order VIII Rule 1 of the Code cannot apply strictly in a matrimonial suit. The husband/petitioner has challenged the impugned order in the instant revisional application.
It is submitted on behalf of the husband/petitioner that the provisions contained in the Code applies to a proceeding initiated under the Hindu Marriage Act, 1955 and, therefore, the outer cap fixed in the said provision squarely applies to the suit of such nature. It is further submitted that once the suit/proceeding is guided and regulated by the provisions of the Code, different interpretations cannot be assigned with regard to the nature of the suits and should apply uniformly. Thus, the expression “as far as possible” cannot be interpreted to oust the rigorous provisions of the Code if the proceeding under the said Act is regulated by the Code. In support of the aforesaid contention, the husband/petitioner relies upon a Single Bench decision of the Bombay High Court in case of Noushad Valappad vs. Sunayna Tarakat @ Sunayna Noushad Valappad, reported in 2011(1) Bombay Law Journal 239, wherein it is held that in absence of any sufficient cause shown for extending the time to file written statement the court should proceed to decide the matrimonial suit ex parte. Another judgement of the Delhi High Court in case of Madho Singh Chauhan vs. Rita, reported in 225(2015) Delhi Law Times 610 is relied upon by the husband/petitioner for the proposition that upon expiration of the period provided under Order VIII Rule 1 of the Code, the right to file written statement cannot remain open eternally. The reliance is heavily placed upon a judgement of the Chhattisgarh High Court in case of Smt. Anuradha Dubey vs. Prasen @ Laxmikant Dubey (Writ Petition No. 3244 of 2004, decided on 19th January 2005), wherein in identical circumstances the Single Bench held that because of the applicability of the Code by virtue of Section 21 of the said Act upon expiration of the maximum period provided under Order VIII Rule 1 of the Code, the court shall not grant extension of time to file written statement. Last but not the least, the learned advocate for the petitioner relies upon two judgements of the Apex Court rendered in case of Dr. J. J. Merchant and others. Vs. Shrinath Chaturvedi, reported in AIR 2002 Supreme Court 2931 : (2002) 6 Supreme Court Cases 635 and in case of New India Assurance Co. Ltd. vs. Hilli Multipurpose Cold Storage Pvt. Ltd., reported in (2015) 16 Supreme Court Cases 20, to buttress the submission that if the statute has provided a maximum period for filing the written statement and does not reserve any rights upon the court to extend it, upon expiration of such period the defendant cannot be permitted to file the written statement. It is, thus, submitted that the court cannot reject the application to fix the suit at the ex parte board as the wife/opposite party failed and neglected to file the written statement within the statutory period. It is further submitted that there is no hard and fast rule that the court should stay the suit until disposal of the application for alimony pendente lite, more particularly, when the wife/opposite party has lost the right to defend the suit.
The aforesaid submissions of the petitioner is countered by the wife/opposite party by contending that the provisions contained under Order VIII Rule 1 of the Code is not mandatory but directory in nature and the power of the Court to extend the time has not been taken away in absolute terms and relies upon a judgement of the Apex Court rendered in case of M/s. R. N. Jadi and Brothers & Ors. V. Subhashchandra, reported in AIR 2007 Supreme Court 2571. It is further submitted that Section 24 of the said Act not only permits grant of maintenance to the wife pending litigation but also empowers the court to award necessary expenses for the proceeding and, therefore, unless the wife is provided reasonable expenses to contest the proceeding, it would not be possible to file the written statement as held in case of Sau. Vinita Pravin Gaikwad v. Shri Pravin Pundlik Gaikwad, reported in AIR 2010 Bombay 62. It is, thus, submitted that the court can extend the time beyond the statutory period, more particularly, in a matrimonial proceeding. A reliance is placed upon another judgement of the Bombay High Court in case of Vanmala v. Maroti Sambhaji Hatkar, reported in AIR 1999 Bombay 388 for the proposition that if the court awarded the maintenance in favour of the wife, she can seek reinforcement of the said order and simultaneously stay of the further proceeding of the suit until the payment thereof. It is, thus, submitted that the court should first decide the application for maintenance and then proceed to decide the suit. Lastly, it is submitted that the court has not committed any error in proceeding to decide the application under Section 24 of the said Act first before it proceeds with the suit.
As would appear from the facts adumbrated hereinbefore, a matrimonial suit is filed by the husband/petitioner for dissolution of marriage by decree of divorce, inter alia, on the ground of desertion, cruelty and adultery. In paragraph 23 of the plaint/application, the husband/petitioner categorically averred that the wife/opposite party is having an extra marital relationship with a man named therein, who is in a similar trade that of the wife. It is axiomatic to record that unless the wife/opposite party is given an opportunity to controvert such serious allegation and if the suit is allowed to proceed ex parte, it would have serious repercussion on her chastity and such stigma shall continue through out her life.
Though this Court feels that the wife/opposite party should be permitted to defend the suit and controvert the statements of such nature while delivering the defence in the written statement, the first and foremost point, which needs for consideration, is whether the court can extend the time beyond the outer cap fixed under Order VIII Rule 1 of the Code.
Section 21 of the said Act starts with the sentence “subject to other provisions contained in this Act and to such Rules as the High Court may make in this behalf” is to be looked into and be interpreted harmoniously vis-ร -vis the provisions of the Code, which undoubtedly regulates such proceeding “as far as may be””. The rules framed by the High Court under the Hindu Marriage Act, 1955 is somewhat silent as the same are restricted to the matrimonial suits instituted before the High Court in its ordinary original jurisdiction and the City Civil Court. It is, thus, manifest that the matrimonial suits filed in the Districts would be regulated, guided and controlled by the Code as far as may be as the subject clause incorporated therein does not run contrary thereto.
Order VIII Rule 1 of the Code, as amended, puts fetter on the court to extend time for filing the written statement with the outer cap and the consequences to follow for its non-adherence is also provided under Order VIII Rule 10 of the Code. In case of Smt. Anuradha Dubey (supra), the Chhattisgarh High Court held that the wording of Section 21 of the Act makes it clear that the expression “as far as may be” though used for the proceedings under the said Act is to be regulated by the Code but the same is subject to the other provisions contained in this Act and to such Rules as the High Court make in this behalf and, therefore, would have its fullest applicability in absence thereof. The Delhi High Court in case of Madho Singh Chauhan (supra) noticed the conduct of the husband, who was frequently seeking adjournment to file written statement and denied the husband further opportunity to contest the matrimonial suit filed by the wife. In case of Noushad Valappad (supra), the Bombay High Court did not lay down that the court cannot extend the time beyond the outer cap fixed under Order VIII Rule 1 of the Code but should be more cautious and careful in extending the time except in case of exceptional circumstances.
The aforesaid judgements of various High Courts, as noticed above, do not in unequivocal terms say that the power of a court to extend the time beyond the outer limit has been absolutely taken away but this Court cannot overlook the judgement of the Apex Court in case of Dr. J. J. Merchant and others (supra) dealing with a matter arising from a proceeding under the Consumer Protection Act, 1986 and held that if the statute provides a time within which the written version is to be filed, it is mandatory and the court cannot exercise power contrary to it in these words:
“15. Under this Rule also, there is a legislative mandate that written statement of defence is to be filed within 30 days. However, if there is a failure to file such written statement within the stipulated time, the court can at the most extend further period of 60 days and no more. Under the Act, the legislative intent is not to give 90 days of time but only maximum 45 days for filing the version by the opposite party. Therefore, the aforesaid mandate is required to be strictly adhered to.”
In case of New India Assurance Co. Ltd. vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (supra) the three-Judge Bench of the Supreme Court was poised with the question whether the law lay down in Dr. J. J. Merchant and others (supra) still holds the field or not. Subsequent to the judgement in Dr. J. J. Merchant and others (supra), the Co-ordinate Bench in case of Kailash vs. Nanhku and others., reported in AIR 2005 Supreme Court 2441 : (2005) 4 Supreme Court Cases 480 held that the provisions under Order VIII Rule 1 of the Code is directory and not mandatory. Because of the conflicting views, the three-Judge Bench was constituted and it is held that the law enunciated in Dr. J. J. Merchant and others (supra) still holds the field and the law laid down in Kailash (supra) is not a good law in these words:
“17. We are, therefore, of the view that the judgment delivered in the case of Dr. J. J. Merchant (supra) holds the field and therefore, we reiterate the view that the District Forum can grant a further period of 15 days to the opposite party for filing his version or reply and not beyond that ….
20. In view of the afore stated clear legal position depicted by a five-Judge Bench, the subject is no more res integra. Not only this three-Judge Bench, but even a Bench of coordinate strength of this Court, which had decided the case of Kailash (supra), was bound by the view taken by a three- Judge Bench in the case of Dr. J. J. Merchant (supra).”
Subsequently, the identical point arose before another Bench of the Supreme Court in case of M/s Bhasin Infotech Infrastructure Pvt. Ltd. -Vs- Grand Venezia Buyers Association (REG) (CA NO. 1085 -1086 OF 2016 decided on 11/02/2016) and because of the conflicting views operating in the field, the Chief Justice of India was requested to constitute a five-Judge Bench. It is profitable to quote the said order, which runs thus:
“Issue notice.
There is an apparent conflict between the decisions of this Court in Topline Shoes Limited vs. Corporation Bank [(2002) 6 SCC 33], Kailash Vs. Nankhu [(2005) 4 SCC 480], Salem Advocate Bar Association Vs. Union of India [(2005) 6 SCC 344] on the one hand and J.J. Merchant & Ors. Vs. Shrinath Chaturvedi[(2002) 6 SCC 635 2 and NIAVs. Vs. Hilli Multipurpose Cold Storage [2014 AIOL 4615] on the other in so far as the power of the Courts to extend time for filing of written statement/reply to a complaint is concerned. The earlier mentioned line of decisions take the view that the relevant provisions including those of Order 8 Rule 1 of the Civil Procedure Code, 1908 are directory in nature and the Courts concerned have the power to extend time for filing the written statement. The second line of decisions which are also of coordinate Benches however takes a contrary view and hold that when it comes to power of the Consumer Fora to extend the time for filing a reply there is no such power.
Since the question that falls for determination here often arises before the Consumer Fora and Commissions all over the country it will be more appropriate if the conflict is resolved by an authoritative judgment. Further since the conflict is between Benches comprising three Judges we deem it fit to refer these appeals to a five-Judge Bench to resolve the conflict once and for all. While we do so we are mindful of the fact that in the ordinary course a two-Judge Bench ought to make a reference to a three-Judge Bench in the first place but in the facts and circumstances of the case and keeping in view the fact that the conflict is between coordinate Benches comprising three Judges a reference to three Judges may not suffice.
We have heard Mr. K.T.S. Tulsi, learned counsel for the appellant on the question whether we ought to stay the proceedings before the National Commission, Mr.Tulsi submits that the National Commission is proceeding with the case without receiving the reply of the appellant-company or even allowing appellant-company to adduce evidence or even to cross-examine the witnesses that may be cited and produced by the complainant.
Stay of the proceedings before the National Commission would in our opinion not only result in procrastination but also cause prejudice to the complainant. The proper course in our opinion is to permit the appellant-company to file its response, which was delayed by just about one day. We accordingly permit the appellant to file its reply before the National Commission within two weeks from today subject to payment of Rs.50,000/- as costs to be paid to the opposite party. The Commission can upon deposit of costs proceed with the trial of the complainant on merits after receiving the reply filed by the respondent. The pendency of present proceedings shall not be an impediment for the Commission to do so. This however is subject to the condition that complainant-respondent is ready and willing to take the proceedings forward on the conditions aforementioned. In case the complainant- respondents have any objection to the continuance of the proceedings before the Commission they shall be free to seek stay of such proceedings pending disposal of these appeals in which event the proceedings shall stayed till disposal of the present appeals.”
The aforesaid judgments are considered and the judgments relied upon by the wife/opposite do not need elaborate discussion as the same are decided on the proposition of law laid down in Kailash (supra). In view of the reference to a five-Judge Bench, the matter is still sub-judice but this Court feels that mere pendency of a reference cannot stand in deciding the point if the special facts and the applicability of the amendment brought in the Code applicable to the State of West Bengal warrants so.
After the addition of the first proviso to Order VIII Rule 1 of the Code by Amending Act of 2002, the Rule Committee of the Calcutta High Court inserted two more provisos, which needs to be noticed. The amended provisions are quoted as under:
“1. Written statement.-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 written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record.]
Provided further that the Court can in exceptional cases extend the time beyond ninety days from the date of service of summons if the defendant proves to the satisfaction of the Court that due to unforeseen circumstances he was prevented from filing the written statement within the said time.
Provided further that the Court should in no case extend such time beyond one hundred twenty days from the service of summons unless it is proved to the satisfaction of the Court that the defendant was prevented from filing the written statement earlier due to the circumstances beyond his control.
– Inserted by Notification No. 4681-G, dated 6.12.2006, published in the Kolkata Gazette, Extraordinary, dated 7.12.2006.”
It is manifest from the aforesaid provision that the third proviso inserted thereto empowers the court to extend time beyond maximum limit subject to the satisfaction of the court that the defendant was prevented from filing the written statement because of the circumstances beyond his/her control.
Section 122 of the Code empowers the High Court to make rules regulating their own procedure and the procedure on Civil Courts subject to their superintendence and may by such Rules annul, alter or add to all or any of the Rules in the first schedule. Section 123 thereof makes imperative to constitute Rule Committee consisting of the persons named therein and the report of the Rule Committee should be submitted to the High Court for consideration. Such Rules approved by the High Court requires further approval of the State Government and shall take effect only after its publication in the Official Gazette either from the date of the publication or from other date, as may be specified under Section 127 of the Code.
By virtue of the aforementioned sections, such rules would be deemed to have been contained in the first schedule and made applicable to all the courts over which the power of superintendence is exercised by that High Court. Another rule making power can be traced from Section 129 of the Code to regulate its own procedure in exercise of original civil jurisdiction. The mere fact that Section 129 expressly confers power to frame rules for regulating procedure on the originsl civil side cannot lead to the conclusion that such rules can be framed under Section 122 of the Code (see Shevaram v. Indian Oil Corporation, AIR 1969 Bombay 117).
In view of the aforesaid amended provisions applicable to the State of West Bengal, the court can extend time beyond the outer cap provided it is proved by the defendant that the circumstances was beyond his/her control.
This Court, therefore, held that the power of the court to extend the time has not been taken away in absolute terms but because of the third proviso, the court can extend even beyond the outer limit, subject to the fulfillment of the conditions enshrined therein.
Reverting to the other point whether the Court may withhold the right of the wife to file written statement unless the litigation expenses claimed by her is awarded. The reference in this regard can be successfully made to a judgment of the Bombay High Court in case of Sau. Vanita Pravin Gaikwad (supra), which is reproduced as under:
“10. The said Section confers a power on the Court in a given case to direct the Petitioner to pay necessary expenses of the proceedings to the respondent on an application being made by the respondent. Such an order can be passed when the Court is satisfied that the respondent does not have independent income. Proviso lays down that if an application for payment of expenses of the proceedings is made, normally the same shall be disposed of within 60 days from the date of service of notice on the wife or the husband, as the case may be. Thus, in a given case where a Petition is filed for divorce or other relief by the husband, if wife does not have income to bear the expenses of the proceedings, she can apply to the trial court for grant of a reasonable amount for meeting the expenses of the proceedings initiated by the husband. The law mandates that such application shall be decided within a period of 60 days. What follows is that till such application is not decided and till the amount ordered to be paid to the respondent-wife not paid, she is not expected to file written statement. At this juncture, it will be necessary to consider a decision of this in the case of Meena alias Pratibha Deshpande v. Prakash Shriniwas Deshpande (1983 Mah LJ 821). It will be necessary to refer to what is held by this Court in paragraph 2 of the said decision:
“2. In the entire proceedings excepting para 5 of the trial court’s judgment, it does not appear that there was any consideration bestowed upon the entitlement of such wife to seek maintenance pendente lite and the expenses of the proceedings for which proper application was filed supported by the affidavit as available at Exs. 11 and
12. Without deciding such an application, it is indeed difficult to permit the passing of such ex parte judgment only because the written statement is not filed, particularly when the allegations on the basis of which relief of nullity and divorce are sought are serious enough and, before they are accepted, required sufficient and adequate proof. In such matters, looking to the police of law, it must be observed that the proceedings under Section 24 of the Act have an important bearing with regard to the rights of the defending spouse. Not only the provisions of Section 24 of the Act permit grant of maintenance pendente lite, but also it permits the court to make an order with regard to necessary expenses of the proceedings. In a given case without provision for the necessary expenses of the proceedings, it would be impracticable to insist upon the defending spouse even to file a written statement. The trial court, which was moved by filing the application, was bound to decide the application with regard to the maintenance and the expenses. There is, thus, obvious failure to follow the provisions of Section 24 of the Act and that should be enough to set aside the judgment under appeal and remit the matter back to the trial Court directing it to consider the application filed at Ex.11 supported by Ex.12 and then to proceed with the enquiry in the petition according to law.” (Emphasis added)
11. Thus, what is held by this Court is that in a given case without making provisions for necessary expenses of the proceedings, it would be impracticable to insist upon the defending spouse even to file a written statement. Therefore, this Court came to the conclusion that unless application made under Section 24 of the said Act was decided, the Court could not have proceeded to pass an ex parte decree.
12. On this aspect there is one more relevant decision in the case of Vanmala w/o. Maroti Hatkar v. Maroti Sambhaji Hatkar (1999 (2) Mah LJ 297) : (AIR 1999 SC 388). This was a case where the husband committed default in complying with the order of interim alimony and payment of expenses passed under Section 24 of the said Act. This Court held that in such a contingency, if the offending party is the petitioner, the proceedings of the Petition can be ordered to be stayed. If the offending party is respondent, then the defence of the respondent can be struck out. Thus if compliance is not made by a Petition with an order passed under Section 24 of the said Act, the proceedings of the Petition can be stayed. Thus, the law laid down by this Court is that unless an application made by the respondent for grant of litigation expenses is decided, the respondent is not even expected to file written statement. If such application is decided in favour of the respondent, it is not expected of the respondent to file the written statement unless order granting litigation expenses is complied with. It is not necessary to go into the wider question whether the provisions of Order VII of the said Code as amended in the year 2002 stand automatically incorporated in Rule 12 of the said Rules. Even assuming that what is incorporated is the amended Rule 1 of Order VIII of the said Code, the same will apply mutatis mutandis. It will apply only to the extent to which it is applicable considering the provisions of the said Act and the said Rules. If it is held that the period for filing written statement provided in Rule 1 of Order VIII as amended is applicable to a Petition under the said Act, the provision of Section 24 of the said Act which is a salutary provision will be rendered nugatory. Moreover, if Rules 10 and 12 are read together, it is apparent that in a given case the Court may issue notice to the respondent without calling upon him/her to file Written Statement. Moreover, the court has discretion to call upon the respondent to file written statement within a longer period than the period of four weeks. This power is conferred by Rule 10 itself. Apart from this, it is obvious that amended Rule 1 of Order VIII which provides for a time limit is inconsistent with the provisions of the said Act and said Rules and in particular Section 24 as well as rules 10 and 12 of the said Rules. If the intention of the framers of the Rules was to apply all the provisions of Order VIII in its entirety to the proceedings under the said Act, the phraseology used in Rules 10 and 12 would not have been used. It is intended to apply only those provisions of Order VIII of the said Code which are not inconsistent or contrary to the provisions of the said Act and the said Rules. In this view of the matter, the time frame provided in Rule 1 of Order VIII, as amended in the year 2002, will not strictly apply to a proceeding of a Petition under the said Act.”
This Court, therefore, does not find any justification in taking the contrary view to the view expressed by the Bombay High Court in the above noted decision.
This Court, therefore, does not find that there is any infirmity and/or illegality in the impugned order.
The revisional application, therefore, fails.
There shall, however, be no order as to costs.
Justice Harish Tandon.
Date: 11/01/2018
Note: The above Judgment referred in Mitali Deb Vs. Nirupam Das: 20 December, 2022 (Calcutta High Court (Appellete Side) C.O. 3604 of 2022, Justice Subhasis Dasgupta.
