# M/S Bon Ton Plastics Pvt. Ltd. Delhi Revisionist v. Sri Ramesh Chawla & Anr

- **Citation:** (2016) 8 ILRA 419
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-30
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-bon-ton-plastics-pvt-ltd-delhi-revisionist-v-sri-ramesh-chawla-anr-44266
- **Pages:** 6

## Headnote

Revision - Section 25 Provincial Small Causes Court Act, 1887 - SCC Suit - Eviction - Arrears of rent -
Written statement - Order 8 Rule 1 C.P.C. - Filing of written statement - Thirty days - Ninety days -
Extension of time - Directory in nature - Exceptional and rare cases - Discretion of Court - Application
rejected - Revision dismissed.

The order dated 31.5.2016 passed by the Additional District Judge in exercise of power as Judge, Small Cause
Court, rejecting the application of the defendant-revisionist (paper No.33-Ga) for taking on record its written
statement is subject of this revision u/s 25 of the Provincial Small Causes Court Act, 1887.(Para 2)

It appears that the plaintiff-respondents filed SCC Suit No.75 of 2013 for eviction of the defendant-revisionist
on the ground of arrears of rent after determining its tenancy. The defendant-revisionist in the said suit had
put in its appearance on 20.11.2013. The defendant-revisionist on 24.7.2015 filed an application under Order
7 Rule 11 C.P.C. for rejection of the plaint. The said application was rejected vide order dated 18.1.2016.(Para
3)

Held:(Para:-20,21,25,26)
1.Accordingly, in my opinion the provisions of Order 8 Rule 1 are directory in nature and the extended time
limit of 90 days provided therein for filing written statement can further be extended at the discretion of the
Court for reasons to be recorded in exceptional and rare cases but not in a routine manner.

2.In view of the above, the court below has the discretion to extend or not to extend the time for filing
written statement beyond 90 days provided sufficient cause is shown justifying extension of time

3.In view of the aforesaid facts and circumstances, if the Court of first instance has exercised its discretionary
power and has rejected the application paper No.33-Ga of the defendant-revisionist by refusing to accept the
written statement filed by the defendant-revisionist, the said discretion is not liable to be disturbed in exercise
of revisional jurisdiction.

4.Accordingly, I find no merit in this revision and the same is dismissed with costs upon the parties
420 INDIAN LAW REPORTS ALLAHABAD SERIES

Case Law discussed:
1.Kailash Vs. Nanhku and others, (2005) 4 SCC 480 - para 14
2.Dr. J.J. Merchant and others Vs. Shrinath Chaturvedi, (2002) 6 SCC 635 - paras 15, 16
3.New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., AIR 2016 SC 86 - paras 16, 17,
19
4.Salem Advocates Bar Association, Tamil Nadu Vs. Union of India, AIR 2005 SC 3353 - paras 18, 19

## Text

8 All. M/S Bon Ton Plastics Pvt. Ltd. Delhi Vs Sri Ramesh Chawla & Anr.
419
(2016) 8 ILRA 419
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2016

BEFORE

THE HON'BLE PANKAJ MITHAL, J.

SCC Revision No.- 279 Of 2016

M/S Bon Ton Plastics Pvt. Ltd. Delhi ...Revisionist
Versus
Sri Ramesh Chawla & Anr. ...Opposite Parties

Counsel for the Revisionist:
Vijay Praksah

Counsel for the Opposite Parties:
Ranjit Saxena

Revision - Section 25 Provincial Small Causes Court Act, 1887 - SCC Suit - Eviction - Arrears of rent -
Written statement - Order 8 Rule 1 C.P.C. - Filing of written statement - Thirty days - Ninety days -
Extension of time - Directory in nature - Exceptional and rare cases - Discretion of Court - Application
rejected - Revision dismissed.

The order dated 31.5.2016 passed by the Additional District Judge in exercise of power as Judge, Small Cause
Court, rejecting the application of the defendant-revisionist (paper No.33-Ga) for taking on record its written
statement is subject of this revision u/s 25 of the Provincial Small Causes Court Act, 1887.(Para 2)

It appears that the plaintiff-respondents filed SCC Suit No.75 of 2013 for eviction of the defendant-revisionist
on the ground of arrears of rent after determining its tenancy. The defendant-revisionist in the said suit had
put in its appearance on 20.11.2013. The defendant-revisionist on 24.7.2015 filed an application under Order
7 Rule 11 C.P.C. for rejection of the plaint. The said application was rejected vide order dated 18.1.2016.(Para
3)

Held:(Para:-20,21,25,26)
1.Accordingly, in my opinion the provisions of Order 8 Rule 1 are directory in nature and the extended time
limit of 90 days provided therein for filing written statement can further be extended at the discretion of the
Court for reasons to be recorded in exceptional and rare cases but not in a routine manner.

2.In view of the above, the court below has the discretion to extend or not to extend the time for filing
written statement beyond 90 days provided sufficient cause is shown justifying extension of time

3.In view of the aforesaid facts and circumstances, if the Court of first instance has exercised its discretionary
power and has rejected the application paper No.33-Ga of the defendant-revisionist by refusing to accept the
written statement filed by the defendant-revisionist, the said discretion is not liable to be disturbed in exercise
of revisional jurisdiction.

4.Accordingly, I find no merit in this revision and the same is dismissed with costs upon the parties
420 INDIAN LAW REPORTS ALLAHABAD SERIES

Case Law discussed:
1.Kailash Vs. Nanhku and others, (2005) 4 SCC 480 - para 14
2.Dr. J.J. Merchant and others Vs. Shrinath Chaturvedi, (2002) 6 SCC 635 - paras 15, 16
3.New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., AIR 2016 SC 86 - paras 16, 17,
19
4.Salem Advocates Bar Association, Tamil Nadu Vs. Union of India, AIR 2005 SC 3353 - paras 18, 19

(Delivered by Hon'ble Pankaj Mithal, J.)

1. Heard Sri Vijay Prakash, learned counsel for the defendant-revisionist and Sri Ranjit
Saxena, learned counsel appearing for the plaintiff-respondents.

2. The order dated 31.5.2016 passed by the Additional District Judge in exercise of power
as Judge, Small Cause Court, rejecting the application of the defendant-revisionist (paper No.33Ga) for taking on record its written statement is subject of this revision u/s 25 of the Provincial
Small Causes Court Act, 1887.

3. It appears that the plaintiff-respondents filed SCC Suit No.75 of 2013 for eviction of the
defendant-revisionist on the ground of arrears of rent after determining its tenancy. The defendantrevisionist in the said suit had put in its appearance on 20.11.2013. The defendant-revisionist on
24.7.2015 filed an application under Order 7 Rule 11 C.P.C. for rejection of the plaint. The said
application was rejected vide order dated 18.1.2016.

4. The defendant revisionist after rejection of the above application filed an application on
17.2.2016 to allow time to challenge the above order before the High Court. The application was
allowed and the order was challenged in SCC Revision No.75 of 2016 which is pending.

5. Thereafter the defendant-revisionist on 24.2.2016 filed an application seeking time to
file written statement and the Court permitted time for filing written statement in accordance with
the provisions of C.P.C. subject to payment of costs of Rs.1000/-.

6. The defendant-revisionist thereafter on 4.3.2016 submitted application paper No.33-Ga
enclosing written statement seeking permission to file it.

7. The aforesaid application has been rejected by the impugned order as Order 8 Rule 1
C.P.C. permits only 30 days time for filing written statement from the date of appearance which
can be extended by the Court to a maximum of 90 days.

8. Admittedly, the defendant-revisionist had not filed the written statement within the
above period of 30 days or the extended period of 90 days but much later for which the Court found
no justification.

9. The submission of Sri Vijay Prakash, learned counsel for the defendant-revisionist is that
the provisions of Order 8 Rule 1 C.P.C. are not mandatory but directory in nature. The time
8 All. M/S Bon Ton Plastics Pvt. Ltd. Delhi Vs Sri Ramesh Chawla & Anr.
421
provided therein for filing written statement can be extended even beyond 90 days for sufficient
reasons. Since the defendant-revisionist bonafidely, on legal advise was pursuing its application
under Order 7 Rule 11 C.P.C. the time spent thereon was liable to be excluded under Section 14 of
the Limitation Act. The Court below therefore, ought to have accepted the written statement by
extending time beyond 90 days of its appearance in the case.

10. Sri Ranjit Saxena on the other hand, contends that the object of the defendantrevisionist was to delay the disposal of the suit by filing unnecessary applications. No valid reason
existed for extending the time for filing written statement beyond the period of 90 days stipulated
under Order 8 Rule 1 C.P.C.

11. Order 8 Rule 1 C.P.C. makes provisions for the filing of written statement, set-off and
counter claim. Rule 1 of Order 8 C.P.C. as amended, provides that the defendant shall, within thirty
days from the date of service of summons on him, present a written statement of his defence. The
proviso to it lays down that where the written statement is not filed within a period of thirty days,
he shall be allowed to file it for reasons to be recorded and on payment of such costs as the court
deems fit but not beyond 90 days from the date of service of summons.

12. In other words, the aforesaid provision mandates for filing of written statement within
30 days of service of summons upon the defendant which period can be extended for reasons to be
recorded to a maximum period of 90 days from the date of service of summons.

13. The use of the word 'shall' therein prima facie makes the provision mandatory in the
nature but as sometimes the use of the word 'shall' is taken to mean 'may' a controversy arose about
the nature of the said provision.

14. The above provision came up for consideration before the three Judges Bench in the
case of Kailash Vs. Nanhku and others (2005) 4 SCC 480 and their Lordships of the Supreme
Court ruled that the aforesaid provision is not mandatory but directory in nature and that the Court
may extend the time for filing of written statement even though the time referred in the aforesaid
provision of 30 days and 90 days have expired.

15. On the other hand, a co-ordinate Bench of three Judges in Dr. J.J. Merchant and
others Vs. Shrinath Chaturvedi (2002) 6 SCC 635 while dealing with the similar and identical
provision of Section 13(2)(a) of the Consumer Protection Act, 1986 which lays down time period
of 30 days + 15 days = 45 days for filing defence in consumer complaint cases on consideration of
the case of Kailash (supra) held that in no case the period of 45 days can be extended for filing
defence in the complaint case.

16. It is in view of the above two decisions that when a similar matter relating to time limit
for filing of defence version came up for consideration in New India Assurance Co. Ltd. Vs. Hilli
Multipurpose Cold Storage Pvt. Ltd. AIR 2016 SC 86, the Apex Court finally approved the view
taken in Dr. J.J. Merchant (supra) and observed that the Co-ordinate Bench in Kailash (supra)
422 INDIAN LAW REPORTS ALLAHABAD SERIES

was bound by the view taken in Dr. J.J. Merchant (supra) and ought to have followed it with
respect.

17. The three Judges Bench in New India Assurance Co. Ltd. (supra) despite agreeing
with the view taken in Dr. J.J. Merchant (supra) and ignoring that of Kailash (supra) fell short of
either over-ruling or holding that the view expressed in Kailash (supra) is per incurium or is not in
accordance with law. Thus, the view taken in Kailash (supra) as regards the nature of the provision
of Order 8 Rule 1 C.P.C. and extension of time beyond 90 days in filing the written statement was
not over-ruled.

18. In New India Assurance Co. Ltd. (supra) the Supreme Court in observing as aforesaid
had not taken note of another three Judges decision in the case of Salem Advocates Bar
Association, Tamil Nadu Vs. Union of India 2005 AIR 2005 SC 3353. In the aforesaid case the
Bench dealt with the provisions of Order 8 Rule 1 C.P.C. in extenso and held that as the aforesaid
provision or as a matter of fact the entire C.P.C. is procedural in nature, the provision of Order 8
Rule 1 despite use of word 'shall' cannot be held to be mandatory in nature and is rather directory in
nature. The aforesaid provision do not place any restriction from granting additional time after the
expiry of 90 days stipulated therein for the purposes of filing written statement. Thus, the time for
filing written statement can be extended even beyond the time limit of 90 days fixed therein in
exceptional and hard cases but not as a matter of routine and the said discretion cannot be utilized
by the Court frequently and in a routine way so as to nullify the existence of Rule 1 of Order 8
C.P.C.

19. A complete reading of the entire case law on the subject and considering the provisions
of Order 8 Rule 1 C.P.C., it is clear that the view expressed in New India Assurance Co. Ltd.
(supra) and Dr. J.J. Merchant (supra) are confined to cases arising out and under the provisions of
Consumer Protection Act, 1986 and the dictum of law laid down therein cannot be applied to
proceedings governed by the procedure laid down under C.P.C. The suits governed by the
procedure established by the C.P.C. have to abide by the radio decidendi of Salem Advocates Bar
Association (supra) and that of Kailash (supra) in so far as they directly express the view in
relation to Order 8 Rule 1 C.P.C.

20. Accordingly, in my opinion the provisions of Order 8 Rule 1 are directory in nature and
the extended time limit of 90 days provided therein for filing written statement can further be
extended at the discretion of the Court for reasons to be recorded in exceptional and rare cases but
not in a routine manner.

21. In view of the above, the court below has the discretion to extend or not to extend the
time for filing written statement beyond 90 days provided sufficient cause is shown justifying
extension of time.
8 All. M/S Bon Ton Plastics Pvt. Ltd. Delhi Vs Sri Ramesh Chawla & Anr.
423
22. There is no dispute that the defendant-revisionist had put in appearance in the suit on
2.11.2013. They filed written statement vide application paper No.33-Ga dated 4.3.2016 i.e. after
about two and half years of appearance which is obviously after service of summons.

23. The defendant-revisionist had filed application under Order 7 Rule 11 C.P.C. on
24.7.2015 and the same was rejected on 18.1.2016. The explanation that the defendant-revisionist
could not file the written statement on account of pendency of the above application is completely
irrelevant and not material. The period of 30 days for filing written statement as well as the
extended period of 90 days had expired much before the application under Order 7 Rule 11 was
filed. There is no explanation or material on record to justify the non-filing of the written statement
by the defendant-revisionist within the above period. Therefore, the defendant-revisionist even if
entitle to exclusion of time spent in pursuing the application under Order 7 Rule 11 C.P.C. has
miserably failed to submit any explanation or justification for not filing the written statement
within 90 days of its appearance which had expired before the filing of application under Order 7
Rule 11 C.P.C.

24. Moreover, the filing of the aforesaid application under Order 7 Rule 11 C.P.C. in no
way had stopped the defendant-revisionist from filing the written statement. The said application
was rejected on 18.1.2016 but the written statement was presented in the Court on 4.3.2016 and in
the meantime the defendant-revisionist had moved two applications seeking time to move to the
High Court and for filing written statement. The manner and conduct in which the defendantrevisionist handled the suit and took time for filing of written statement speaks for itself that the
intention was to prolong the matter rather to contest it on merit and git it concluded. These facts do
not justify to make out an exceptional and rare case fit for extending time for filing written
statement beyond the period of 90 days.

25. In view of the aforesaid facts and circumstances, if the Court of first instance has
exercised its discretionary power and has rejected the application paper No.33-Ga of the defendantrevisionist by refusing to accept the written statement filed by the defendant-revisionist, the said
discretion is not liable to be disturbed in exercise of revisional jurisdiction.

26. Accordingly, I find no merit in this revision and the same is dismissed with costs upon
the parties.
-----------
424 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 424
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.08.2016

BEFORE

THE HON'BLE PRADEEP KUMAR SINGH BAGHEL, J.

Service Single No.- 1619 Of 2012

Brij Kishore ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Jitendra Singh

Counsel for the Respondents:
C.S.C, B.P. Singh, N.C Mehrotra, Seema Singh

Writ petition - Article 226 Constitution - Date of birth - Service record - School leaving certificate -
Medical examination report - U.P. Recruitment to Services (Determination of Date of Birth) Rules, 1974 -
Rule 2 - Complaint by brother - Retirement from service - Recovery of salary - Breach of natural justice
- Document not supplied - No departmental enquiry - Impugned order quashed - No recovery

The brief reference to the factual aspect would suffice. The petitioner was initially engaged on the post of
Waterman on 08.02.1980 on casual basis. He was regularized on the said post on 01.01.1988. A show cause
notice was issued to the petitioner on 23.11.2011 on the basis of a complaint made by his brother dated
01.06.2010 wherein it was alleged that the petitioner's date of birth in the school leaving certificate was
recorded as 02.01.1945. It was alleged that he was a student of Primary School, Nawabganj Sandi, Hardoi
and according to the records of the said institution, his date of birth was 02.01.1945. Copy of the show cause
notice is on record as Annexure-7 to the writ petition. (Para 2)

The petitioner has submitted his reply to the said show cause notice on 26.11.2011 denying all the allegations
made therein. It has been contended on his behalf that the petitioner at the time of his appointment, was
sent for medical examination and on the basis of the age mentioned in the medical examination report, his
date of birth was recorded in his service record as 02.01.1954. He has stated that his brother due to enmity,
has got manufactured some documents to cause harassment to the petitioner. (Para 3)

After considering the reply submitted by the petitioner, the fourth respondent has passed the impugned order
and the petitioner has been retired. In the impugned order the fourth respondent has recorded that correct
date of birth of the petitioner is 02.01.1945, thus, petitioner ought to have been retired on attaining the age
of superannuation on 03.01.2005. Accordingly, a direction was issued to treat the petitioner as retired on
31.12.2011 and for recovery of his salary from 01.02.2005 to 31.12.2011. In the impugned order it is also
recorded that on a complaint dated 01.06.2010, it came to the knowledge that the petitioner's correct date of
birth is 02.01.1945 and on the basis of the fabricated medical report, the petitioner has got recorded his date
of birth as 02.01.1954 in his service record. Some legal opinion has also been sought before passing the
impugned order. (Para 4)