High Court of KeralaSingle Judge2017-12-12Disposed of

M/S Poabs Estates (P) Ltd. v. State of Kerala

Case / Petition Number:OP(C) No. 3106 of 2017 (O)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Alexander Thomas
Judgment Date: 2017-12-12
Court Decision / Holding: The Original Petition is disposed of. The Principal Sub Judge, Palakkad, is directed to ensure that OS No. 142 of 2015 is taken up for consideration and disposed of without much delay, preferably within six to eight months from the production of a certified copy of this judgment, provided there are no impediments. The court notes the need for better administrative action and directs remedial steps to prevent future delays.
Final Disposition: Disposed of

Parties to the Case

Appellants / Petitioners

M/S Poabs Estates (P) Ltd., represented by its Managing Director, Sri. Joseph Jacob

Respondents

State of Kerala, represented by the District Collector, Palakkad

Legal Representation & Advocates

Counsels for Petitioners

• Sri N. James Koshy

Counsels for Respondents

• Sri M.R. Sabu

Case Synopsis & Summary

Poabs Estates (P) Ltd. approached the High Court under Article 227 challenging Ext. P3, the trial court’s order accepting a belated written statement in OS 142/2015 before the Principal Sub Judge, Palakkad. The petitioner asserts that the statement was filed after a 90‑day period fixed by Order VIII, Rule 1, CPC, and that the order reveals no application of mind by the court to the reasons for the delay. It is argued that there was negligence in preparing Ext. P1, with the deponent district officers failing to give a contemporaneous, detailed affidavit, reflecting administrative laxity. The respondent State counters with the cited Supreme Court decision Sambhaji and others v. Gangabai and others, contending that Order VIII, Rule 1 CPC is essentially procedural and not mandatory, and that procedural rules aid justice rather than hinder it. It further maintains that laches should be avoided, but the court must allow practical management of suits. The High Court, while not upsetting the Sub Court's order, emphasizes the need to avoid recurrent delays and to implement corrective measures for the government machinery. It directs the Sub Judge to prioritize OS 142/2015 with a target disposal within six to eight months from production of a certified copy of this judgment, and disposes of the petition accordingly.

Provisions of Law Cited

Article 227 of the Constitution of IndiaOrder VIII Rule 1 CPCOrder VIII Rule 10 CPC

Legal Doctrines & Maxims

Laches (doctrine)
Procedural vs Substantive law doctrine: Order VIII Rule 1 CPC is procedural and not substantive law

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the written statement was filed after the 90-day period fixed by Order VIII, Rule 1, CPC, and that the order Ext. P3 shows no application of mind by the court to the grounds for delay. It alleges negligence in preparing Ext. P1 affidavit, reflecting administrative laxity, and seeks to set aside Ext. P3 while directing appropriate action under Order VIII Rule 10 CPC or disposal of the main OS 142/2015 with expedition. The applicant requests that the court ensure timely and just adjudication by recognizing the procedural defect and correcting it to avoid irreparable prejudice.

Contentions of Respondents

The respondents rely on Sambhaji and others v. Gangabai and others, contending that Order VIII, Rule 1 CPC is essentially procedural and not mandatory; laches should be avoided but the court may permit belated statements if justice requires. They argue that administrative delays in government offices caused the delay, that strict adherence to a rigid deadline would undermine efficient governance, and that the trial court’s order should be respected to allow the state to contest the suit. They welcome the High Court’s directive to expedite the main suit OS 142/2015 and stress the need for a pragmatic resolution balancing equity and administrative efficiency.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sambhaji and others v. Gangabai and others	(2008) 17 SCC 117	Positive	Apex Court held that Order VIII Rule 1 CPC is procedural and aids justice; the High Court relied on this precedent to justify accepting belated written statements under discretionary principles and to avoid rigid mandatory application.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 12TH DAY OF DECEMBER 2017/21ST AGRAHAYANA, 1939** **OP(C).No. 3106 of 2017 (O)** **-------------------------OS.142/2015 OF THE PRINCIPAL SUB COURT, PALAKKAD** **PETITIONER:** **----------** **M/S POABS ESTATES (P) LTD., REPRESENTED BY ITS MANAGING DIRECTOR, SRI.JOSEPH JACOB, AGED 42 YEARS, S/O.P.A.JACOB, BUSINESS, SEETHARGUNDU, NELLIYAMPATHY, CHITTUR TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.N.JAMES KOSHY** **RESPONDENT:** **----------** **STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, PALAKKAD, PIN-678508.** **BY SR. GOVERNMENT PLEADER SRI.M.R.SABU** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **OP(C).No. 3106 of 2017 (O) --------------------------** ## **APPENDIX** |**PETITIONER(S)' EXHIBITS**|**PETITIONER(S)' EXHIBITS**| |---|---| |**-----------------------**|| |**P1**|**TRUE COPY OF THE AFFIDAVIT AND PETITION IA.1367/2017 IN OS.142/2015**| ||**FILED BY THE DEPUTY COLLECTOR (LR), PALAKKAD BEFORE THE ADDITIONAL**| ||**SUB COURT, PALAKKAD**| |**P2**|**TRUE COPY OF THE COUNTER STATEMENT FILED IN IA.1367/2017 IN**| ||**OS.142/2015 BY THE PETITIONER/PLAINTIFF BEFORE THE ADDITIONAL SUB**| ||**COURT, PALAKKAD**| |**P3**|**TRUE COPY OF THE ORDER IN IA.1367/2017 IN OS.142/2015 OF THE COURT**| ||**OF THE PRINCIPAL SUBORDINATE JUDGE, PALAKKAD DATED 5.8.2017**| |**RESPONDENT(S)' EXHIBITS**|| |**-----------------------**|| |**R1(A)**|**TRUE COPY OF THE JUDGMENT REPORTED IN SAMBHAJI AND OTHERS VS.**| ||**GANGABAI AND OTHER (2009(1) KHC 415)**| ||**TRUE COPY**| ||**P.S. TO JUDGE**| **EL** ## **ALEXANDER THOMAS, J.** ------------------------------------------------------------------ O.P.(C) No.3106 of 2017 ---------------------------------------------Dated this the 12[th] day of December, 2017 ## **J U D G M E N T** The prayers in this Original Petition(Civil) filed under Article 227 of the Constitution of India are as follows: “i) Call for the records which leads to the issuance of Exhibit-P3 and to set aside same; ii) To direct court below to pass appropriate orders in O.S.No.142/2015 as per the provisions contained in Order VIII Rule 10 of the Code of Civil Procedure and to pronounce judgment on the facts and circumstances of the case.” 2. Heard Sri.N.James Koshy, learned counsel appearing for the petitioner and Sri.M.R.Sabu, learned Senior Government Pleader appearing for the respondent State of Kerala. Order under challenge in this original petition is the one rendered by the trial court concerned as per Ext.P3, whereby the written statement filed by the defendant therein (State of Kerala) had been accepted. The objection raised by the petitioner is that the said written statement has been filed beyond the time limit of 90 days stipulated in Order VIII, Rule 1 of the Code of Civil Procedure. Further, it is urged by the learned counsel appearing O.P.C.No.3106/2017 2 for the petitioner that a mere reading of the impugned order would disclose that there no application of mind from the part of the court below as to the factors which made the court accepting the written statement which has been admittedly filed beyond the prescribed time limit. Sri.M.R.Sabu, learned senior Government Pleader appearing for the petitioner has submitted on the basis of the counter affidavit filed in this case about the facts of the case and that lack of coordination between the officers concerned in getting instructions and that this prevented the officer concerned in disclosing the reasons for the delay in the submission of the written statement. It is also been stated in paragraph No.5 of the said counter affidavit filed by the State that the Government Pleader concerned and the Deputy Collector concerned are omitted to state the facts of the case in detail in Ext.P1 affidavit and that detailed enquiry will conduct with respect to the negligence of the officers concerned in not filing proper affidavit before the court below and that the deponent of the present affidavit had taken charge of District Collector, Palakkad only on 24.08.2017 and further he has assured this Court that he would take necessary steps to protect O.P.C.No.3106/2017 3 the interest of the Government and to prosecute the cases pending in Civil Courts against the Government in Palakkad District. 3. Heard Sri.M.R.Sabu, learned senior Government Pleader appearing for the State of Kerala has placed strong reliance on the judgment of the Apex Court in **Sambhaji and others v. Gangabai and others [(2008) 17 SCC 117],** copy of which has been incorporated as Ext.R1(a) along with the counter affidavit filed, wherein it has been held that the nature of the provision contained in Order VIII Rule 1 CPC is essentially procedural in nature and that it is not part of substantive law and the procedural law is not considered as mandatory and that the procedural law is substantive to and is an aid to justice, and that it is similar fact situation the Apex Court had repelled the similar contentions as the one raised in the present original petition. Having regard to the facts and circumstances in this case this Court is not inclined to interfere in this matter, especially in view of the dictum laid down by the Apex Court in **Sambhaji's case** (supra). The State of affairs in respect of the preparation of Ext.P1 affidavit is far from satisfactory as has O.P.C.No.3106/2017 4 been candidly admitted by the District Collector concerned who is the deponent of the counter affidavit filed in this case. Sri.M.R.Sabu, learned senior Government Pleader appearing for the respondent State of Kerala has assured this Court that strict instruction has been given to the officers concerned to ensure that laches of the present nature are to be avoided in future and appropriate remedial measures should be taken in the matter etc. Sri.M.James Koshy, learned counsel apperaing for the petitioner would submit that in case this court did not inclined to grant the main prayer in this original petition, then this Court may moderate the grant of relief by ordering that the main matter in O.S.No.142 of 2015 now pending on the file of the Court of Principal Subordinate Judge, Palakkad is finally disposed of without much delay. Sri.M.R.Sabu, learned senior Government Pleader appearing for the respondent State of Kerala has raised serious objection to the said cause of action proposed by the learned counsel for the petitioner. Accordingly, it is ordered that the Principal Sub Judge, Palakkad is directed to ensure that O.S.No.142 of 2015 is taken up for consideration and disposal without much delay, preferably within a period of six to O.P.C.No.3106/2017 5 eight months from the date of production of a certified copy of this judgment, provided there are no other impediments for achieving the said target. Petitioner will produce a certified copy of this judgment before the court below concerned for necessary action. With these observations and directions, the above Original petition (Civil) will stand disposed of. Sd/- **(ALEXANDER THOMAS, JUDGE)** TRUE COPY P. A TO JUDGE DG O.P.C.No.3106/2017 6