# Lok Pal Singh and others v. IInd A.D.J., Bijnor and another

- **Citation:** (2005) 2 ILRA 474
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-06-21
- **Case number:** Civil Misc. Writ Petition No. 9825 of 2005
- **Bench:** Anjani Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lok-pal-singh-and-others-v-iind-a-d-j-bijnor-and-another-40476
- **Pages:** 4

## Headnote

Code of Civil Procedure-Ord. 8 R-Iwritten statement filed beyond 90 days
from the Service of Summon-objection
that it can not be accepted and acted
upon-whether the provision of order 8 r.
I are mandatory or obligatory?-held in
view of law laiddown by the Apex Court
in Kailash Nath case-the provisions are
obligatory-the court can accept the
written
statement
under
the
circumstances
mentioned
in
the
judgment of Kailash Nath case.

Held: Para 3 and 4

The question as to whether the proviso
to Order VIII, Rule 1 of the Code of Civil
Procedure, as amended by amending Act
of 2002 is mandatory or directory, has
been considered by the apex Court in the
case of Kailash Vs. Nanhku and others,
wherein three Judges Bench in Civil
Appeal No. 7000 of 2004, the apex Court
has held that the provisions of the Order
VIII, Rule 1 of the Code of Civil
Procedure
are
not
mandatory
but
directory in nature. Relying upon the
aforesaid judgment, this Court has held
in the case of Masroor Ali Vs. Court of In
charge District Judge/Additional District
Judge, Court No.1, Kanpur Nagar and
others [{Civil Misc. Writ Petition No.
25816 of 2005, decided on 19th May,
2005}], that the view that the Court has
no power after the expiry of 90 days of
the service of summons to accept the
written statement in view of proviso to
Order VIII, Rule 1 of the Code of Civil
Procedure, cannot be said to be straight
jacket formula and in the circumstances
of the case, the Court can accept the
written
statement
under
the
circumstances
mentioned
in
the
judgement of the apex Court in the case
of
Kailash
Vs.
Nanhku
and
others
(supra).

In view of the aforesaid law laid down by
the apex Court and followed by this
Court in the case of Masroor Ali, this writ
petition deserves to be allowed. The
order dated 8th December, 2004, passed
by the trial Court and the order dated
22nd January, 2005, passed by the
revisional Court are quashed. The
matter is remanded back to the trial
Court
for
decision
afresh
on
the
application filed by the petitioner-tenant
for accepting the written statement in
accordance with the law laid down by
the apex Court and this Court after
affording opportunity of hearing to the
parties.

Case law discussed:
W.P. No. 25816 of 2005 decided on 19.5.05

## Text

474 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
rent can be passed and suit therefore, is
liable to be dismissed. On the question of
default, the trial court found that since the
provisions of U.P. Act No. 13 of 1972 are
not applicable, therefore the termination
of tenancy by a simple notice is sufficient.
On the question of default also, the trial
court recorded finding in favour of the
landlord and decreed the suit. On the
question of jurisdiction of the small cause
court, the trial court decided the issue in
favour of the landlord. The tenantdefendant aggrieved by the decree of the
trial court, preferred a revision before the
revisional court. On the question of
applicability of the provisions of U.P. Act
No. 13 of 1972, the revisional court
reversed the finding recorded by the trial
court and held that the landlord has failed
to demonstrate that the building in
question was constructed in the year,
1985, therefore, the provisions of U.P.
Act No. 13 of 1972 are applicable to the
building in question. The revisional court
found that the provisions of U.P. Act No.
13 of 1972 are applicable and the
defendant had already complied with the
provisions of Section 20 (4) of U.P. Act
No. 13 of 1972, the view taken by the trial
court deserves to the repelled. The
revisional court therefore, allowed the
revision and set aside the order of the trial
court and dismissed the suit No. 162 of
1997 filed by plaintiff landlord.

2. Learned counsel for the petitioner
has submitted that in view of the Division
Bench decision of this court reported in
1981 ARC page 545; Laxmi Kishore
and another Versus Har Prasad Shukla
even if the revisional court reversed the
finding of the trial court, it ought to have
remanded back the matter to the trial
court and should not have dismissed the
suit,as has been done by the revisional
court. Learned counsel for the petitioner
therefore, submitted that this writ petition
deserves to be allowed on thus question
and the order of the revisional court
deserves to be quashed.

3.

Learned
counsel
for
the
respondent tries to justify the order of the
revisional court but in view of the
Division
Bench
decision
of
Laxmi
Kishore (supra) I find force in the
submission made by counsel for the
petitioner.

4. This writ petition is, therefore,
allowed and the order of the revisional
court dated 29.11.2002 is quashed but in
the
interest
of
justice
instead
of
remanding back to the revisional court
with the direction to further remand back
the matter to the trial court, order of the
trial court also for the reasons given by
the revisional court is quashed. The
matter will now go back to the trial court
to be decided afresh in accordance with
law after affording opportunity to the
parties. Since the suit is of the year, 1997,
I direct the trial court to decide the suit
within three months from the date of
presentation of certified copy of this
order.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.6.2005

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 9825 of 2005

Sri Manohar Lal

...Petitioner
Versus
State of U.P. and others ...Respondents
2 All] Lok Pal Singh and others V. IInd A.D.J., Bijnor and another

 475
Counsel for the Petitioner:
Sri Nithil Agrawal
Sri Praveen Kumar Misra

Counsel for the Respondents:
Sri S.C. Dwivedi
S.C.

Code of Civil Procedure-Ord. 8 R-Iwritten statement filed beyond 90 days
from the Service of Summon-objection
that it can not be accepted and acted
upon-whether the provision of order 8 r.
I are mandatory or obligatory?-held in
view of law laiddown by the Apex Court
in Kailash Nath case-the provisions are
obligatory-the court can accept the
written
statement
under
the
circumstances
mentioned
in
the
judgment of Kailash Nath case.

Held: Para 3 and 4

The question as to whether the proviso
to Order VIII, Rule 1 of the Code of Civil
Procedure, as amended by amending Act
of 2002 is mandatory or directory, has
been considered by the apex Court in the
case of Kailash Vs. Nanhku and others,
wherein three Judges Bench in Civil
Appeal No. 7000 of 2004, the apex Court
has held that the provisions of the Order
VIII, Rule 1 of the Code of Civil
Procedure
are
not
mandatory
but
directory in nature. Relying upon the
aforesaid judgment, this Court has held
in the case of Masroor Ali Vs. Court of In
charge District Judge/Additional District
Judge, Court No.1, Kanpur Nagar and
others [{Civil Misc. Writ Petition No.
25816 of 2005, decided on 19th May,
2005}], that the view that the Court has
no power after the expiry of 90 days of
the service of summons to accept the
written statement in view of proviso to
Order VIII, Rule 1 of the Code of Civil
Procedure, cannot be said to be straight
jacket formula and in the circumstances
of the case, the Court can accept the
written
statement
under
the
circumstances
mentioned
in
the
judgement of the apex Court in the case
of
Kailash
Vs.
Nanhku
and
others
(supra).

In view of the aforesaid law laid down by
the apex Court and followed by this
Court in the case of Masroor Ali, this writ
petition deserves to be allowed. The
order dated 8th December, 2004, passed
by the trial Court and the order dated
22nd January, 2005, passed by the
revisional Court are quashed. The
matter is remanded back to the trial
Court
for
decision
afresh
on
the
application filed by the petitioner-tenant
for accepting the written statement in
accordance with the law laid down by
the apex Court and this Court after
affording opportunity of hearing to the
parties.

Case law discussed:
W.P. No. 25816 of 2005 decided on 19.5.05

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

1. By means of present writ petition
under Article 226 of the Constitution of
India, the petitioner-tenant challenges the
order dated 8th December, 2004, passed
by the trial Court and the order dated 22nd
January, 2005, passed by the revisional
Court, copies whereof are annexed as
Annexure Nos.'3' and '5', respectively, to
the writ petition, whereby application
paper No. 40 C filed by the plaintiffcontesting respondent under proviso to
Order VIII, Rule 1 of the Code of Civil
Procedure has been accepted and the trial
Court directed that since the written
statement filed by the petitioner-tenant
can not be accepted on record, as the
same has been filed beyond 90 days of the
service of the summons upon the
defendant.

2. The facts leading to the filing of
the present writ petition are that the
contesting respondent filed a suit against
476 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
the tenant-defendant, petitioner in this
petition, for the arrears of rent and
eviction of the shop under the tenancy of
the petitioner. The landlord moved an
application raising objection that since the
written statement filed by the petitionertenant is not within the time prescribed
under the proviso to Order VIII, Rule 1 of
the Code of Civil Procedure. The trial
Court vide order dated 8th December,
2004
rejected
the
petitioner-tenant's
application on the ground that the
petitioner-tenant is adopting delaying
tactics. Aggrieved thereby, the petitionertenant preferred a revision before the
revisional Court. The revisional Court by
the order impugned dated 22nd January,
2005 dismissed the revision filed by the
petitioner-tenant. Thus, this writ petition.

3. The question as to whether the
proviso to Order VIII, Rule 1 of the Code
of Civil Procedure, as amended by
amending Act of 2002 is mandatory or
directory, has been considered by the
apex Court in the case of Kailash Vs.
Nanhku and others, wherein three
Judges Bench in Civil Appeal No. 7000 of
2004, the apex Court has held that the
provisions of the Order VIII, Rule 1 of the
Code
of
Civil
Procedure
are
not
mandatory
but
directory
in
nature.
Relying upon the aforesaid judgment, this
Court has held in the case of Masroor Ali
Vs.
Court
of
In charge District
Judge/Additional District Judge, Court
No.1, Kanpur Nagar and others [{Civil
Misc. Writ Petition No. 25816 of 2005,
decided on 19th May, 2005}], that the
view that the Court has no power after the
expiry of 90 days of the service of
summons to accept the written statement
in view of proviso to Order VIII, Rule 1
of the Code of Civil Procedure, cannot be
said to be straight jacket formula and in
the circumstances of the case, the Court
can accept the written statement under the
circumstances
mentioned
in
the
judgement of the apex Court in the case of
Kailash Vs. Nanhku and others (supra).

4. In view of the aforesaid law laid
down by the apex Court and followed by
this Court in the case of Masroor Ali, this
writ petition deserves to be allowed. The
order dated 8th December, 2004, passed
by the trial Court and the order dated 22nd
January, 2005, passed by the revisional
Court are quashed. The matter is
remanded back to the trial Court for
decision afresh on the application filed by
the petitioner-tenant for accepting the
written statement in accordance with the
law laid down by the apex Court and this
Court after affording opportunity of
hearing to the parties.

5. In view of what has been stated
above, this writ petition succeeds and is
allowed. The order dated 8th December,
2004, passed by the trial Court and the
order dated 22nd January, 2005, passed by
the revisional Court, Annexure Nos.'3'
and '5', respectively, to the writ petition
are quashed. The matter is remanded
back to the trial Court for decision afresh
on the application filed by the petitionertenant for accepting the written statement
in accordance with the law laid down by
the apex Court and this Court after
affording opportunity of hearing to the
parties.
Petition Allowed.
---------
2 All] Sri Manohar Lal V. State of U.P. and others

 477
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.4.2005

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 35150 of 1998

Dhananjai Singh

...Petitioner
Versus
Mukhya Suraksha Ayukt (Chief Security
commissioner) R.P.F., N.E.R. Gorakhpur
and others

 ...Respondents

Counsel for the Petitioner:
Sri P.P. Srivastava
Sri Namwar Singh
Sri Sanjiv Singh
Sri S.N. Yadav
Sri Sharad Yadav
Sri D.V. Singh

Counsel for the Respondents:
Sri Lal Ji Sinha

Constitution of India, Article 226-Service
Law-Right to appointment-Petitionerqualifying in Test for the post of
Constable-in R.P.F.-but found guilty of
false declaration about the criminal
cases-inspite of specific column provided
in application form-held-not entitled for
appointment.

Held: Para 12

After hearing counsel for the parties and
after perusal of the record and after
consideration of various judgments of
the Apex Court as well as this Court, it is
clear that the petitioner has concealed
the facts regarding the criminal case,
which
were
pending
against
the
petitioner and has not given the correct
information in the declaration form,
though there was a specific column
regarding pendency of any criminal case
whether it is pending or whether it was
pending and whether the petitioner has
been acquitted or not. The petitioner has
clearly concealed this fact, as such, he is
not entitled for any relief.
Case law discussed:
1997 SCC-492
AIR 1999 SCC-2326
1998 (1) ESC-778
2001 ESC- Raj. 1837 (GB)
J.T. 2003 (2) SC-256

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

1. By means of the present writ
petition, petitioner has approached this
Court for issuing a writ of certiorari
quashing the impugned order dated
3.1.2000 passed by the respondent No.1
and for issuing a writ in the nature of
mandamus directing the respondents not
to give effect to the order dated 3.1.2000.

2. The fact arising out of the present
writ petition, is that the petitioner was
selected
as
constable
in
Railway
Protection
Force,
Northern
Eastern
Railway in the pay scale of Rs.825-1200
by the Recruitment Committee constituted
under Rule 49.2 of the Railway Protection
Rules 1957. A written test and interview
was held in the month of July, 1997 in
pursuance of the advertisement of the
respondent No.2. The petitioner was
selected and directed to be present himself
on 20.9.1997. The petitioner was directed
to fill up the required form before the
appointment subject to verification by the
police authorities about the character of
the petitioner under Rules 52.1 and 52.2
of Railway Protection Force Rules. The
petitioner
appeared
for
medical
examination and was found fit for
appointment. A physical fitness certificate
dated 19.9.1997 was also issued and the
petitioner was required to fill up the form
and there were various clauses to be filled
up by the petitioner. Petitioner was