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RAJEEV SHARMA AND ANOTHER versus SMT. PRITI ISSAR AND OTHERS

High Court of Judicature at Allahabad

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Rajeev Sharma And Another v. Smt. Priti Issar And Others - CIVIL REVISION No. 399 of 2006 [2006] RD-AH 17779 (16 October 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

Court No. 26

Civil Revision No. 399 of 2006

Rajeev Sharma and another Vs. Smt. Priti Issar & others

Hon'ble Prakash Krishna, J.

This revision is being taken up and disposed of at the admission stage, as jointly agreed by the counsel for the parties.

By the order under revision the court below has refused  to take the  written statement on record of the case, in as much as the same was not filed within 90 days as provided under the Code of  Civil Procedure 1908.

The plaintiff/opposite party no.1 instituted suit no. 126 of 2003 in the Court of Civil Judge (Senior Division), Aligarh for prohibitory injunction, restraining the defendants not to interfere in the ownership and right of the plaintiff on the allegations that the plaintiff is the  owner of the property in question. The said property belonged to the father of the plaintiff and defendants Sri Vikram Jeet Sharma. The parties are brothers and sister. Sri Vikram Jeet Sharma during life time executed will dated 2nd February, 1984 in favour of his wife Smt. Kamla Sharma. After death of Sri Vikram Jeet Sharma on 26th May, 1984, the will dated 2nd February, 1984 came into operation. The plaintiff has claimed 1/5 share in the property in question. The further allegation is that her name is recorded in the house tax assessment register etc. Along with the plaint an application for grant of ad interim injunction order was also filed. Objections to the ad interim injunction application was filed, but the written statement in spite of the time granted by the Court  was not filed.

Ultimately the written statement was filed along with an application for taking it on record and also extending the period for filing the same. By the order under revision the court below has rejected the application filed by the defendants with a direction that the written statement may be taken off the record and has fixed 20th October, 2006 as the date fixed for recording exparte evidence.

Sri Divakar Rai, Advocate appearing for the applicant submitted that although there was some delay  on the part of the defendants in not filing the written statement within the statutory period of time.  Elaborating the argument it was submitted that the written statement may be taken on record by imposing heavy cost on the applicant. He offered to pay a sum of Rs. 25,000/- as cost within a period of 15 days from the date of this order. In contra, Sri M.K. Gupta, learned counsel for the plaintiff/opposite party no.1 opposed the revision and submitted that in view of the judgment in the case of  Salem Advocate Bar Association, Tamil Nadu Vs. Union of India 2005 SCFBRC 429 and also another judgment in the case of Kailash Vs.. Nanhku 2005 (1) ARC 861, the extension of time may be allowed by way of exception for reasons to be assigned by the defendant and also be placed on record in writing under Order VIII, Rule 1 though couched in mandatory form is directory being a provision in the domain of procedural law.

The relevant paragraph is reproduced below :-

"45.  We  sum up and briefly state our conclusions as under :-

(i).......

(ii).......

(iii).......

(iv) The purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1 of CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though, the language of the proviso to Rule 1 of Order VIII of the CPC is couched in negative form, it does not specify any penal consequences flowing from the non compliance. The provision being in the domain of the Procedural Law, it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by Order VIII, Rule 1 of the CPC is not completely taken away.

(v) Though Order VIII, Rule 1 of the CPC is a part of Procedural  Law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained  in the provision is to be followed as a rule and departure there from would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking, more so when the period of90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the  defendant and also be placed on record in writing,  howsoever briefly, by the Court  on its being satisfied. Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case."

I have given careful consideration  to the respective submissions of the learned counsel for the parties and taken into account that the parties are sister and brothers and the property in question is the property which admittedly originally belonged to their father. It is desirable that to cut short the litigation, the defendants be permitted  to put up the written statement on record  on payment of heavy cost with the condition that they may now cooperate with the court proceedings and shall not seek unnecessary adjournments.

Sri Divakar Rai, appearing for the applicant also stated at the Bar and has given an undertaking on behalf of defendant/applicant that the defendant/applicant shall not seek unnecessary adjournment and shall cooperate with the disposal and hearing of the ad interim injunction application as well as of the suit.

In view of the above facts it is necessary in the interest of justice that the written statement already filed by the applicant may be taken on record subject to payment of  Rs. 25000/- as cost by 28th October, 2006. It is made clear that in case of default in making deposit as directed above this order shall stand automatically vacated. If the amount as stipulated above is deposited within the period granted by this order on or before 28th October, 2006, the court below shall take up the suit for hearing on 30th October, 2006. The applicant shall deposit the amount by way of bank draft in favour of Smt. Priti Issar and the court below shall hand over the said bank draft to said Smt. Priti Issar.

As jointly agreed by the learned counsel for the parties, the parties are directed to appear before the court below on 30th October, 2006. On that date the court below shall make endeavour to hear and dispose of the ad interim injunction application . If for some reason or the other, the case is not taken up on 30th October, 2006, the injunction application shall be taken up on the next date.

Subject to above observations the revision succeeds and is allowed and order under revision is hereby set aside.

Dt. 16.10.2006

KCS


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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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