# Defendant v. Lala Ramanuj Dayal Vaishya Bal Sadan

- **Citation:** (2004) 2 ILRA 381
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-04-20
- **Case number:** Civil Misc. Writ Petition No.16040 of 2004
- **Bench:** Anjani Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/defendant-v-lala-ramanuj-dayal-vaishya-bal-sadan-40374
- **Pages:** 4

## Headnote

Code of Civil Procedure, 1908-O, VIII R.1
Proviso by amendment Act 46 of 1999
and as amended by Act 22 of 2002-S.15b)-Applicability- time limit for filing
Written Statement-Ord. VIII R.1 made
inapplicable to pending suits by S. 15-b
of Act 22 of 2002-Provision of O.22 R.1
as
amended
not
retrospective-Writ
allowed.

"Provision of Order VIII, Rule 1 requiring
the written statement to be filed within
30 days from the date of service of
summons and confers power upon the
Court for reasons to be recorded to
extend
time
for
filing
the
written
statement to a day not later than 90
days
from
the
date
of
service
of
summons. This provision has been made
inapplicable to pending suits by virtue of
the provisions of Section 15-b of act 22
of 2002. The scheme of the amended
provisions which has been discussed
above indicates in the matter of time for
filing the written statement he amended
provisions of Order VIII, Rule 1 would
not be applicable to pending suits and
although the provision is procedural
retrospectively
as
textually
inadmissible."

 Para 4
Case law discussed:
AIR 2003 A.P. 409
AIR 2003 Kant 417
2003 (1) ARC 556

## Text

http://www.allahabadhighcourt.nic.in
2 All] Ashutosh Agrawal V. Lala Ramanuj Vaishya Bal Sadan
381
the 'Mandi Parishad', then the petitioner
could
be
thrown
away
by
order
simiplicitor dated 18.3.1999 otherwise
shall be punitive in nature. The 'Mandi
Parishad' shall have to deal with the
situation by making negotiations with the
Corporation and both may rectify the
terms and conditions bonafidely, fairly
and in public interest and if 'Corporation '
is willing to take back the petitioner then
only the 'Mandi Parishad' shall pass the
order of repatriation or order of sending
back the petitioner from the 'Mandi
Parishad' to the Corporation. Therefore,
'Mandi Parishad' shall pass appropriate
order within six months from the date of
production of a certified copy of this
order after taking consent of the petitioner
and providing opportunity of hearing and
after deliberation with the Corporation.
However, the petitioner shall be treated
the employee of the Corporation and shall
be entitled to receive his salary and
increments due to him.

In view of the above observations the
writ petition is disposed of.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.04.2004

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No.16040 of 2004

Ashutosh Agrawal

...Defendant
Versus
Lala Ramanuj Dayal Vaishya Bal Sadan

...Plaintiff

Counsel for the Petitioner:
Sri M.K. Gupta

Counsel for the Respondent:
Sri P.K. Jain
Code of Civil Procedure, 1908-O, VIII R.1
Proviso by amendment Act 46 of 1999
and as amended by Act 22 of 2002-S.15b)-Applicability- time limit for filing
Written Statement-Ord. VIII R.1 made
inapplicable to pending suits by S. 15-b
of Act 22 of 2002-Provision of O.22 R.1
as
amended
not
retrospective-Writ
allowed.

"Provision of Order VIII, Rule 1 requiring
the written statement to be filed within
30 days from the date of service of
summons and confers power upon the
Court for reasons to be recorded to
extend
time
for
filing
the
written
statement to a day not later than 90
days
from
the
date
of
service
of
summons. This provision has been made
inapplicable to pending suits by virtue of
the provisions of Section 15-b of act 22
of 2002. The scheme of the amended
provisions which has been discussed
above indicates in the matter of time for
filing the written statement he amended
provisions of Order VIII, Rule 1 would
not be applicable to pending suits and
although the provision is procedural
retrospectively
as
textually
inadmissible."

 Para 4
Case law discussed:
AIR 2003 A.P. 409
AIR 2003 Kant 417
2003 (1) ARC 556

(Delivered by Hon'ble Anjani Kumar, J.)

1. Heard Sri M.K. Gupta, learned
counsel appearing on behalf of the
petitioner and Sri P.K. Jain, learned
counsel for the respondent. Both the
counsels for the parties are agree that the
matter may be heard on merits, as it
relates to the pure question of law. In
these circumstances, it is not necessary to
invite any counter affidavit.

2. The sole argument advanced on
behalf of learned counsel appearing on
behalf of the petitioner is that the
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
382
amended provision of the Code of Civil
Procedure, Order VIII, Rule 1 by which
the proviso has been added by the Act of
1999, which says that no time for filing
the written statement shall be granted
after the Court is adjourned beyond 90
days in terms of the above Order VIII
Rule 1 of the Code of Civil Procedure,
which is reproduced below:-

"Order VIII, Rule 1. Written
statement.----The defendant shall, within
thirty days from the ate 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 this Court, for
reasons to be recorded in writing, but
which shall not be later than ninety days
from the date of service of summons"

3. Learned counsel for the petitioner
has relied upon a decision reported in
A.I.R. 2003 Andhra Pradesh, page 409
Nachipeddi Ramaswamy vs. P. Buchi
Reddy, by which Andhra Pradesh High
Court interpreted the Order VIII Rule 1 of
the Code of Civil Procedure, particularly
paragraphs 6,7 and 8 which read as
under:-

"6. A reading of Rule 1 of Order
VIII, CPC does not support the contention
of the learned counsel for the petitioner.
The normal requirement of law is that the
defendant shall within 30 days from the
date of service of summons, present the
written statement of his defence subject to
other Rules contained in Order VIII. This
Rule is not inflexible or rigid. This is
made clear by the proviso to Rule 1 of
Order VIII as amended by Act 22 of
2002. It stipulates that it is competent for
the Court to specify the time beyond 30
days and in any case the same shall not be
later than 90 days from the date of service
of summons. It is also interesting to note
that Rules 8-A, 9 and 10 in the Code of
Civil Procedure 1908 were omitted by Act
46 of 1999 but again they were
reintroduced after Act 22 of 2002. Rule
10 of Order VIII reads as under:

Procedure when party fails to present
written statement called for by Court:-
Where any party from whom a written
statement is required under Rule 1 or Rule
9 fails to present the same within the time
permitted or fixed by the Court, as the
case may be, the Court shall pronounce
judgment against him, or make such order
in relation to the suit as it thinks fit and on
the pronouncement of such judgment a
decree shall be drawn up.

7.
A plain reading of the above
would show that if a defendant fails to
present the written statement within the
time permitted or fixed by the Court, the
Court has to pronounce judgment and
make such order relating to the suit as it
thinks fit. The very fact that the
Parliament which chose to delete Rule 10
of the Order VIII CPC again decided to
reintroduce it by Act 22 of 2002 would
show that Order VIII, Rule 1 CPC as
amended by Act 22 of 2002 cannot be
interpreted in strict terms. Further, to my
mind, Rules 1, 1 (a) and 10 of Order VIII
together would show that though a
defendant is required to file written
statement within 30 days after receipt of
summons and though the Court can
extend the time till 90 days, the Court is
not divested of power to fix further time
for filing the written statement. It is well
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2 All] Ashutosh Agrawal V. Lala Ramanuj Vaishya Bal Sadan
383
settled that this cardinal principle of
interpretation of law with an enactment
has to be read as a whole and then the
entire section has to be read and thereafter
the act has to be interpreted section by
section. One Rule or one Section in the
enactment cannot be a guiding factor for
arriving
at
the
intendment
of
the
legislature. The very fact that Rule 10 is
reintroduced by Act 22 of 2002 by the
Parliament
would
show
that
the
Parliament never intended the Civil Court
to pronounce judgment immediately after
the failure on the part of the defendant to
file written statement within 90 days.

8.
Further,
Section
148,
CPC
empowers the Court to enlarge the time.
In addition to this, we must not forget that
the Civil Court being a Court of equity,
justice and good conscience is also vested
with inherent posers under Section 151
CPC to avoid miscarriage of justice. It is
always open to the Civil Court to exercise
inherent powers provided such exercise is
not totally derogatory to the main
provisions of the Act and the Rules made
thereunder."

Further decision relied upon by
learned counsel appearing on behalf of the
petitioner is reported in A.I.R. 2003
Karnataka, page 417 A.V. Purushotam
Vs. N.K. Nagarj, particularly paragraph 9
which is reproduced below:-

9.
It is also relevant to note at this
juncture that the Legislature in its wisdom
has
not
stated
decisively
what
consequences would follow in the event
of the written statement not being filed
within the period stipulated. In other
words, in the absence of expressly stating
what the penal consequences would be
when the written statement is not filed
within
the
stipulated
period,
notwithstanding the use of the work
'shall' in Order 5 Rule 1, Order 8 Rule 1,
Order 8 Rule 9 and Order 8 Rule 10, it
cannot be said that the said provisions are
mandatory."

4. Learned counsel appearing on
behalf of the responent has relied upon a
decision of this Court in support of his
contention
reported
in
2003
(1)
Allahabad Rent Cases, page 556 Waqf
Mausooma Syed Husain and another
Vs. Daleep Kumar Jain and others,
wherein the learned single Judge of this
Court has held "provision of Order VIII,
Rule 1 requiring the written statement to
be filed within 30 days from the date of
service of summons and confers power
upon the Court for reasons to be recorded
to extend time for filing the written
statement to a day not later than 90 days
from the date of service of summons. This
provision has been made inapplicable to
pending suits by virtue of the provisions
of Section 15-b of act 22 of 2002. The
scheme of the amended provisions which
has been discussed above indicates in the
matter of time for filing the written
statement he amended provisions of
Order VIII, Rule 1 would not be
applicable to pending suits and although
the
provision
is
procedural
retrospectively as textually inadmissible."

In view of what has been discussed
above and in view of the case relied upon
by learned counsel for the respondent, this
writ petition deserves to be allowed and
the order impugned in the present writ
petition dated 10th March, 2004, passed by
Additional District Judge, Court No. 18,
Meerut deserves to be set aside.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
384

5. In view of what has been stated
above, this writ petition succeeds and is
allowed. The order impugned in the
present writ petition dated 10th March,
2004, passed by Additional District
Judge, Court No. 18, Meerut is quashed.
So fare as the order passed by the trial
Court is concerned, the trial Court is
directed to proceed with the hearing of the
suit expeditiously, preferably within a
period of one year from the date of
production of a certified copy of this
order before him.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.5.2004

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 10771 of 2004

Ram Rakhan Singh & others ...Petitioners
Versus
Hon'ble the Chief Justice, High Court of
Judicature, Allahabad and another

 ...Respondents

Counsel for the Petitioners:
Sri Shashi Nandan
Sri Pankaj Misra
Sri Devendra Swaroop

Counsel for the Respondents:
Sri K.R. Sirohi
S.C.

Constitution of India, Articles 14 and 16Allahabad High Court Officer and Staff
(Condition
of
Service
and
Conduct)
Rules, 1976-Rr. 11, 8 and10- Petitioners
seeking
direction
to
quash
advertisement-from Assistants of High
Court
for
appointment
of
Bench
Secretary
Grade
II
petitioners
also
seeking direction from Registrar General
to make appointment of 21 Bench
Secretaries
Grade
II,
for
which
application have been invited by said
advertisement dated 6.2.2004, out of
approved select list dated 19.1.2003Held, appointing authority did not act
illegally, arbitrarily or in violation of
fundamental rights under Articles 14 and
16 in declaring fresh selections for 21
vacancies of Bench Secretary Grade II
and curtailing life of previous select list
dt. 21.1.2003.

For the reasons given as above, I do not
find that the appointing authority acted
illegally, arbitrarily or in violation of
petitioners rights under Article 14 and 16
of the Constitution of India in declaring
fresh selections for 21 vacancies of
Bench secretary Grade II, and curtailing
the life of previous select list dated
21.1.2003.

Consequently
the
writ
petition fails and is dismissed, with no
order as to costs.

Para 18
Case law discussed:
(2004) 1 SCC 136
(1987) UPLBEC 1006
(1991) 3 ACC 47
(2001) 6 SCC 380

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard Sri Shashi Nandan, Senior
Advocate, assisted by Sri Pankaj Misra
for petitioner and Sri K.R. Sirohi for
respondents.

2. The petitioners have sought a
direction to quash the advertisement dated
6.2.2004 issued by Registrar General,
High
Court
at
Allahabad
inviting
application from the Assistants of the
High
Court
for
selection
through
competitive examination for appointment
of Bench Secretary Grade-II. The
petitioners have also prayed for a
direction to the Registrar General to make
appointment of 21 Bench Secretary Grade
II, for which applications have been