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PITAMBAR LAL versus STATE OF U.P. THRU' CHIEF SECY. & OTHERS

High Court of Judicature at Allahabad

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Pitambar Lal v. State Of U.P. Thru' Chief Secy. & Others - WRIT - C No. 61571 of 2005 [2006] RD-AH 4745 (28 February 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

"Reserved"

Civil Misc. Writ Petition No. 61571 of 2005.

Pitambar Lal                                                                                     .........Petitioner.

Versus

State of U.P. and others                                                                 ....Respondents.

...........

Hon'ble Anjani Kumar, J.

By means of present writ petition under Article 226 of the Constitution of India, the petitioner-defendant has challenged the order dated 20th January, 2005, passed by the trial Court and the order dated 13th July, 2005, passed by the revisional Court, whereby the revisional Court dismissed the revision filed by the petitioner-defendant, copies whereof are annexed as Annexure Nos. '9' and '11', respectively to the writ petition.

The petitioner, who was defendant in the suit, aggrieved by the order passed by the trial Court dated 20th January, 2005, whereby the trial Court recalled its own order dated 6th October, 2004 by which the trial Court  on an application filed by the petitioner-defendant granted time for filing the written statement beyond ninety days as contemplated under Order VIII, Rule 1 of the Code of Civil Procedure on payment of cost of Rs.50/-.  Pursuant to the order dated 6th October, 2004, the petitioner-defendant has filed his written statement which on an application filed by the plaintiff-respondents paper No. 32 Ka set aside the order dated 6th October, 2004 and rejected the application which has already been allowed by the trial Court vide its order dated 6th October, 2004 and time for filing the written statement was extended.  The trial Court has arrived at the aforesaid conclusion relying upon the decision of this Court reported in 2004 (2) A.R.C., 598 - Nanda Agrawal (Dr.) Vs. Matri Mandir, Varanasi and another.

Aggrieved by the order dated 20th January, 2005, passed by the trial Court, the petitioner-defendant preferred a civil revision before the revisional Court.  The revisional Court by the order impugned in the present writ petition dated 13th July, 2005 dismissed the revision filed by the petitioner-defendant and maintained the order passed by the trial Court, whereby the trial Court rejected the application by which the time was extended for filing the written statement and refused to accept the written statement filed by the petitioner-defendant.

Learned counsel appearing on behalf of the petitioner-defendant in support of his contention has relied upon a decision of the apex Court reported in 2005 A.I.R. SCW, 2346 = (2005) 4 Supreme Court Cases, 480 - Kailash Vs. nanhku and others, wherein the apex Court has held, which reads thus :-

"The provision of Order VIII, Rule 1 of the Code of Civil Procedure does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for.  Secondly, the nature of the provision contained in Order VIII, Rule 1 is procedural.  It is not a part of the substantive law.  Thirdly, the object behind substituting Order VIII, Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments.  The object is to expedite the hearing and not to scuttle the same.  The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried."

Thus the apex Court laid down the law, which reads thus :-

"Considering the object and purpose behind enacting Rule 1 of Order VIII in the present form and the context in which the provisions 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 though 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 now 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 candidates may succeed in enjoying the substantial part, if not in its entirety, the term for which he was elected even though he may loose 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.

Ordinarily, the time schedule prescribed by Order VIII, 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 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 VIII, Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons 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 extended."

The Apex Court further rules, which reads thus :-

"A prayer seeking time beyond 90 days for filing the written statement ought to be made in writing.  In its judicial discretion exercised on well-settled parameters, the Court may indeed put the defendants on terms including imposition of compensatory costs and may also insist of 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 that the prayer was founded on grounds which do exist.

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, the defendant shall 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 asking and (ii) to compensate the plaintiff for the delay and inconvenience caused to him.

However, no strait-jacket formula can be laid down except that the observance of time schedule contemplated by Order VIII, Rule 1 shall be the rule and departure therefrom an exception, made for satisfactory reasons only.  We hold that Order VIII, Rule 1, though couched in mandatory form, is directory being a provision in the domain of processual law."

Coming to the impugned orders in the present case, a perusal whereof will clearly demonstrate that the trial Court has relied upon the decision of this Court in the case of Nanda Agrawal (Dr.) and the revisional Court, though referred to the case of Kailash Vs. Nanhku and others (supra), but yet has not decided the matter on the principles laid down by the apex Court.  In these circumstances, the order passed by the trial Court dated 20th January, 2005 and the order passed by the revisional Court dated 13th July, 2005 deserves to be quashed and are hereby quashed.  The matter is remanded back to the trial Court for decision afresh in the light of the law laid down by the Apex Court in the case of Kailash Vs. Nanhku and others (supra) and in accordance with law.  Since the matter is old, the trial Court is directed to decide the application filed by the petitioner-defendant for extension of time for filing the written statement after affording an opportunity of hearing to the parties and further permit the parties to file such other affidavits as they like, within a period of six weeks' from the date of presentation of a certified copy of this order before it.

In the result, the writ petition succeeds and is allowed.  The impugned order dated 20th January, 2005, passed by the trial Court and the order dated 13th July, 2005, passed by the revisional Court, (Annexure Nos. '9' and '11' , respectively, to the writ petition) are quashed.  The matter is remanded back to the trial Court for decision afresh in the light of the law laid down by the Apex Court in the case of Kailash Vs. Nanhku and others (supra) and in accordance with law.  Since the matter is old, the trial Court is directed to decide the application filed by the petitioner-defendant for extension of time for filing the written statement after affording an opportunity of hearing to the parties concerned and further permit the parties to file such other affidavits as they like, within a period of six weeks' from the date of presentation of a certified copy of this order before it.

Dated:

Rks.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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