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VIDHUSHI DEVI versus SHIVAKANT AND OTHERS

High Court of Judicature at Allahabad

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Vidhushi Devi v. Shivakant And Others - WRIT - C No. - 56275 of 2007 [2007] RD-AH 17989 (16 November 2007)

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 AT ALLAHABAD

CourtNo.6

Civil Misc. Writ Petition No. 56275 of 2007

Vidhushi Devi Vs. Shiva Kant and others

~~~~

Hon. Dilip Gupta, J.

This petition is directed against the order dated 10.7.2006 passed by the learned Civil Judge (Junior Division) Chhibramau, district Kannauj as also the order dated 12.9.2007 passed by the Additional District Judge, Kannauj by which the Revision has been dismissed.

In Original Suit No. 1 of 2003 the defendant filed a written statement along with an application for condonation of delay in filing the written statement. The Trial Court condoned the delay in filing the written statement. The Revision filed against the said order has been dismissed by the order dated 12.9.2007.

Order VIII Rule 1 of the Code of Civil Procedure as amended by Amendment Act, 2002 is as follows :-

"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."

The Supreme Court in Kailash Vs. Nanhku & Ors., 2005 AIR SCW 2346 summed up the conclusions in paragraph 45 as follows :-

"(iii) 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.

iv) 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 therefrom 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 of 90 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."

The aforesaid decision of the Supreme Court was followed in M/s. R.N. Jadi and Brothers & Ors. Vs. Subhashchandra, 2007 AIR SCW 4568.

In the instant case, the Courts, in their discretion by giving cogent reasons have condoned the delay in filing the written statement. The suit was instituted on 12.5.2003 for cancellation of the sale-deed dated 22.12.2002 on the ground that it had been got executed fraudulently. Summonses were served upon defendant Nos. 1 and 2 in which 10.8.2003 was fixed for filing of written-statement. Time was taken on 10.8.2003 for filing the written-statement. The lawyers were on strike on the subsequent dates fixed for 18.8.2003, 29.11.2003, 18.3.2004, 15.4.2004, 12.5.2004 and 26.7.2004. The written-statement was, however, not filed on 21.8.2004 or 22.9.2004. On 1.11.2004 the defendants did not appear and nor did they file the written-statement and so the Court directed that the suit shall proceed ex parte. An application (14 C) was moved by the defendants on the next date fixed 6.12.2004 for setting aside the order dated 1.11.2004 and for granting time to file the written-statement. During the pendency of this application, the defendants filed their written-statement on 19.2.2005. The Trial Court allowed the application (14 C) and set aside the order dated 1.11.2004 on payment of cost of Rs. 150/- and also accepted the written-statement. The Revisional Court has noticed that on many occasions the lawyers had gone on strike as a result of which the written-statement could not be filed and that evidence had still not been led by the plaintiff. In such circumstances, the Revision was rejected .

In view of the aforesaid decisions of the Supreme Court in Kailash (supra) and M/s. R.N. Jadi (supra), the orders passed by the Courts below do not call for any interference under Article 226 of the Constitution.

Learned counsel for the petitioner then contended that in view of the peculiar facts and circumstances of this case, a direction may be given for early disposal of Suit.

Considering the facts and circumstances as set out in the petition, it is desirable that the suit itself be decided expeditiously.

The writ petition under Article 226 of the Constitution is, accordingly, disposed of by directing the learned Civil Judge (Junior Division), Chhibramau, district Kannauj to decide Original Suit No. 148 of 2003 expeditiously preferably within a period of one year from the date of filing of a certified copy of this order before the Court.

Dt/-16.11.2007

Sharma


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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