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LAXMI KANT PACHAURI versus ADDL. DISTRICT JUDGE NAD OTHERS

High Court of Judicature at Allahabad

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Laxmi Kant Pachauri v. Addl. District Judge Nad Others - WRIT - C No. 59372 of 2006 [2006] RD-AH 18329 (30 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.6

Civil Misc. Writ Petition No.59372 of 2006

Laxmi Kant Pachauri                         .................................Petitioner.

Versus

Additional District Judge, Mainpuri and others.     ..........Respondent.

Hon'ble Tarun Agarwala, J.

The written statement was taken on record. The petitioner filed an objection praying that the written statement should not be taken on record since it was filed beyond the stipulated period as required under Order 8 Rule 1 C.P.C. This application was rejected by the trial court. The petitioner filed a revision which was also rejected. Consequently, the writ petition.

The learned counsel for the petitioner submitted that the provision of Order 8 Rule 1 is mandatory and is required to be adhered strictly in accordance with the provision of Order 8 Rule 1 of C.P.C. In support of his submission, the learned counsel for the petitioner has relied upon a decision of the Supreme Court in Dr. J.J. Merchant and others Vs. Shrinath Chaturvedi, 2002(6) SCC 635, wherein the Supreme Court held as follows:-

" 14. For this purpose, even Parliament has amended Order 8 Rule 1 of the Code of Civil Procedure, which reads thus:

"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 same on such other day, as may be specified by the court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons."

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."

.2.

The learned counsel for the petitioner has further placed reliance upon a decision of this Court in Dr. Nanda Agrawal Vs. Matri Mandir, Varanasi and another, AIR 2005 Allahabad 12, wherein the Court held that the provision of Order 8 Rule 1 is mandatory and that the Court trying a civil suit does not have any power to extend the time for filing a written statement.

In the opinion of the Court, the submissions of the learned counsel for the petitioner is bereft of merit. The Supreme Court in  Rani Kusum ( Smt.) Vs. Kanchan Devi ( Smt.) and others, AIR 2005(6) SCC 705 held that the provision of Order 8 Rule 1, being procedural in nature is directory and is not mandatory and that time can be extended to file a written statement. The Supreme Court held that observance of a time schedule should normally be the rule and departure should be an exception made on satisfactory reasons to be recorded. Similar view was held by the Supreme Court in Kailash Vs. Nankhu and others, AIR 2005(4) SCC 480 as well as in Salem Advocate Bar Association Tamil Nadu Vs. UOI, AIR 2005 SC 3353. The Supreme Court again in Shaikh Saleem Hazi Abdul Vs. Kumar and others, AIR 2006 SC 396 held that the civil court has an inherent power to enlarge the time for filing the written statement.

In view of the aforesaid, no interference is required in a writ jurisdiction. The writ petition fails and is dismissed.

Dt: 30.10.06

SFH


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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