"Do You Not Know The Fate Of This Application", SC Reprimands Advocate Seeking Modification Of Order
The Supreme Court vacation bench of Justice Arun Mishra and Justice Deepak Gupta, hearing an application for modification or clarification of the order dated December 15 dismissing a Special Leave Petition (SLP), reprimanded an advocate, appearing on behalf of the present petitioner, for “misuse of the process of court”.
The bench said the SLP arose from a judgment dated November 16 of the Allahabad High Court passed in revision. In its judgment, the high court had upheld the dismissal by the trial court of the present petitioner’s application under Order VIII Rule 10 of CPC seeking rejection of the written statement on the ground that the same was filed beyond the statutory period of 90 days in a suit for partition and injunction.
The high court had relied on the judgment of the apex court in Salem Advocate Bar Association TN v UOI [(2005) 6 SCC 344] in so far as it was held therein, “In construing the provision of Order 8 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 8, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order 8 Rule 1. There is no restriction in Order 8 Rule 10 that after expiry of 90 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 8 Rule 1 providing for upper limit of 90 days to file written statement is directory.”
“Do you not know the fate of such applications? Is the client informed of the fate of such an application? This amounts to misuse of the process of the court,” remarked the bench on Friday.
In the SLP dismissed on December 15 by a bench of Justice Arun Mishra and Justice Mohan M Shantanagoudar, it was observed, “No case for interference with the impugned judgment is made out. Accordingly, the Special Leave Petition is dismissed.”
The dispute between the parties belonging to same family is regarding a Will left by the deceased father whereby property first goes in favour of his wife and thereafter in favour of the eldest son.