# Narendra Kumar v. A.D.J. Room No. 4 Sultanpur & Ors

- **Citation:** (2020) 2 ILRA 1378
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2017-01-12
- **Case number:** Misc. Single No. 713 of 2017
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/narendra-kumar-v-a-d-j-room-no-4-sultanpur-ors-44309
- **Pages:** 4

## Headnote

A. Civil Law-Code of Civil Procedure, 1908-O-VIII R-1Petitioners-application for filing W.S-as was not filed-due
to the mistake of the counsel-rejected-on the ground
of-delay of more than 24 years-O-VIII R-1-provides a
period of 30 days-for filing WS-for reasons to be
recorded-not later than 90 days-it can be extended only
in exceptional circumstances-occasioned by reasons
beyond the control of defendant-extention of time-can't
be frequently and routinely exercised-petitioner was a
party-since beginning-a literate person-fully aware of
the proceedings-no convincing or cogent reasons-to
justify delay. Petition Dismissed.

B. Held, suit filed by resps. In the year 1990. More
than 26 years have passed since the dat of institution of
the suit.the petitioner was a party in the said suit from
the very beginning, but he failed to file any WS. The
petitioner is a literate personand is working as a lekhpal,
and as such he was fully aware of the on going
proceedings. The petitioner had full opportunity to file
his WS but he chose not to do the same. It is not the
case of the petitioner that he was not aware about the
suit. There is no convincing or cogent reason provided
by the petitioner for not filing his WS for such an
extremely long period of time, and therefore, at this
distance of time, the petitioner cannot be permitted to
file WS.

List of cases cited:-

Salem Advocate Bar Association, T.N vs UOI 2005 (6)
SCC 344

## Text

1378 INDIAN LAW REPORTS ALLAHABAD SERIES
application of his was pending in the
aforesaid cases.

9. In view of the above, the
impugned order cannot be sustained and is
liable to be set-aside.

10. These are the reasons upon which
we had set-aside the impugned order dated
08.05.2018 passed by the respondent no. 2,
District Magistrate, Meerut.
----------
(2020)02ILR A1378

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.01.2017

BEFORE
THE HON'BLE RAKESH SRIVASTAVA, J.

Misc. Single No. 713 of 2017

Narendra Kumar ...Petitioner
Versus
A.D.J. Room No. 4 Sultanpur & Ors.
 ...Respondents

Counsel for the Petitioner:
Bajrang Bahadur Singh

Counsel for the Respondents:
---
A. Civil Law-Code of Civil Procedure, 1908-O-VIII R-1Petitioners-application for filing W.S-as was not filed-due
to the mistake of the counsel-rejected-on the ground
of-delay of more than 24 years-O-VIII R-1-provides a
period of 30 days-for filing WS-for reasons to be
recorded-not later than 90 days-it can be extended only
in exceptional circumstances-occasioned by reasons
beyond the control of defendant-extention of time-can't
be frequently and routinely exercised-petitioner was a
party-since beginning-a literate person-fully aware of
the proceedings-no convincing or cogent reasons-to
justify delay. Petition Dismissed.

B. Held, suit filed by resps. In the year 1990. More
than 26 years have passed since the dat of institution of
the suit.the petitioner was a party in the said suit from
the very beginning, but he failed to file any WS. The
petitioner is a literate personand is working as a lekhpal,
and as such he was fully aware of the on going
proceedings. The petitioner had full opportunity to file
his WS but he chose not to do the same. It is not the
case of the petitioner that he was not aware about the
suit. There is no convincing or cogent reason provided
by the petitioner for not filing his WS for such an
extremely long period of time, and therefore, at this
distance of time, the petitioner cannot be permitted to
file WS.

List of cases cited:-

Salem Advocate Bar Association, T.N vs UOI 2005 (6)
SCC 344
(Delivered by Hon'ble Rakesh Srivastava, J.)

1. Heard Shri Bajrang Bahadur Singh,
learned counsel for the petitioner.

2. This petition under Article 227 of the
Constitution of India has been filed challenging
the order date 19.11.2015, passed by the Civil
Judge (Junior Division), Room No. 15,
Sultanpur, in Regular Suit No. 258 of 1990 (Hari
Prasad and another v. Ram Autar and others) and
the order dated 24.08.2016, passed by the
Additional District Judge, Room No. 4,
Sultanpur, in Civil Revision No. 124 of 2015
(Narendra Kumar Nikhar v. Hari Prasad and
others).

3. The basic facts of the matter are
not in dispute. On 09.11.1990, the
plaintiffs - Hari Prasad and Kamla Devi,
respondent nos. 3 and 4 herein, filed a suit
(Regular Suit No. 258 of 1990 in the court
of District Judge, Sultanpur) against Ram
Autar and his three sons namely Ravindra
Kumar, Virendra Kumar and Narendra
Kumar, for declaration of title and
permanent injunction with regards to
House No. 98, situated at MohallaShahganj, Murari Das Ki Gali, ParganaMeeranpur, Tehsil & District Sultanpur.
2 All. Narendra Kumar Vs. A.D.J. Room No. 4 Sultanpur & Ors.
1379

4. Summons were served upon the
defendants on 30.4.1991. Ram Autar (the
first
defendant)
filed
his
written
statement. On 18.08.1994 issues were
framed. After exchange of pleadings the
suit was posted for evidence of the
plaintiffs on 05.03.2002. Issue no. 8 was
decided on 07.01.2003. On 21.12.2003
Ram Autar died. The sons of Ram Autar
were already party in the suit and as such
his daughters, Usha Nikhar and Asha,
respondent no. 7 and 8 herein, were
substituted as his legal representatives.
On 23.01.2006 the evidence of the
plaintiffs was closed and the matter was
posted
for
the
evidence
of
the
defendants, if any. On 23.02.2006, Usha
Nikhar and Virendra Kumar (the third
defendant) filed their joint written
statement which was taken on record. On
26.02.2006 the opportunity to adduce
evidence of the petitioner (the fourth
defendant) was closed. However, on the
application of the petitioner the said
order was recalled. The petitioner,
thereafter, filed his evidence in the shape
of affidavit.

5. On 10.09.2015, the petitioner
moved an application (384Ga-2) seeking
permission to file his written statement.
In his application the petitioner inter alia
stated that the first defendant had filed
the written statement on his own behalf;
that the petitioner had not moved any
application adopting the said written
statement; that because of the mistake on
the part of the petitioner's counsel,
written statement on his behalf could not
be filed.

6. The respondent nos. 3 and 4 filed their
objections to the said application contending
inter alia that the said application was not
maintainable; and that the petitioner had not
made out any substantial ground to condone
the delay of more than 24 years in filing the
written statement.

7. By the order dated 19.11.2015, the
trial Judge rejected the application of the
petitioner on the ground that on the basis of the
written statement filed by the first defendant,
the petitioner had already filed his affidavit by
way of evidence and the matter was being
posted for his cross examination. There was an
order passed by this Court for expeditious
disposal of the suit in a petition filed by
respondent no. 9 (the third defendant). In these
circumstances, it was not proper to give an
opportunity to the petitioner to file his written
statement at this stage. The revision filed by
the petitioner against the said order was
dismissed by the Additional District Judge for
the same reason. Both these orders are under
challenge in this petition.

8. Learned counsel for the petitioner has
submitted that the trial Court was obliged to
grant time to the petitioner to file his written
statement. In case the petitioner is not granted
time, he shall suffer irreparable loss.

9. Order 8 Rule 1 of the Code of
Civil Procedure, 1908 was amended by
Act No. 22/2002 w.e.f. 01.07.2002. Order
VIII Rule 1, after the amendment, casts an
obligation on the defendant to file written
statement within 30 days from the date of
service of summons on him. The proviso
thereto stipulates that where the defendant
fails to file the written statement within the
said period of 30 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 shall not be later
than 90 days from the date of service of
summons. However, the Apex Court has
repeatedly held that the extension of time
for filing of the written statement cannot
be allowed in a routine manner.
1380 INDIAN LAW REPORTS ALLAHABAD SERIES

10. In Kailash v. Nanhku, (2005) 4
SCC 480 though the Apex Court has held
that the period of 90 days prescribed for
filing written statement was directory in
nature but in the same breath has held that
time for filing written statement can be
extended
only
in
exceptional
circumstances for reasons which were
beyond the control of the defendant. The
relevant portion of the report is extracted
below:-

"42.
Ordinarily,
the
time
schedule prescribed by Order 8 Rule 1 has
to be honoured. The defendant should be
vigilant. No sooner the writ of summons is
served on him he should take steps for
drafting his defence and filing the written
statement on the appointed date of hearing
without waiting for the arrival of the date
appointed in the summons for his
appearance in the court. The extension of
time sought for by the defendant from the
court whether within 30 days or 90 days,
as the case may be, should not be granted
just as a matter of routine and merely for
the asking, more so, when the period of 90
days has expired. The extension can be
only by way of an exception and for
reasons assigned by the defendant and
also recorded in writing by the court to its
satisfaction. It must be spelled out that a
departure
from
the
time
schedule
prescribed by Order 8 Rule 1 of the Code
was being allowed to be made because the
circumstances
were
exceptional,
occasioned by reasons beyond the control
of the defendant and such extension was
required in the interest of justice, and
grave injustice would be occasioned if the
time was not extended."

 (emphasis supplied)

11. The same view has been
expressed by the Apex Court in the case of
Salem Advocate Bar Association, Tamil
Nadu v. Union of India, (2005) 6 SCC 344,
in the following words:

"21. ...There is no restriction in
Order 8 Rule 10 that after expiry of ninety
days, further time cannot be granted. The
court has wide power to "make such order
in relation to the suit as it thinks fit".
Clearly, therefore, the provision of Order 8
Rule 1 providing for the upper limit of 90
days to file written statement is directory.
Having said so, we wish to make it clear
that the order extending time to file written
statement cannot be made in routine. The
time can be extended only in exceptionally
hard cases. While extending time, it has to
be borne in mind that the legislature has
fixed the upper time-limit of 90 days. The
discretion of the court to extend the time
shall not be so frequently and routinely
exercised so as to nullify the period fixed
by Order 8 Rule 1." (emphasis supplied)

12. Coming back to the facts of the
present matter, the suit filed by the
respondent nos. 3 and 4 is of the year
1990. More than 26 years have passed
since the date of institution of the suit. The
petitioner was a party in the said suit from
the very beginning, but he failed to file
any written statement. The petitioner is a
literate person and is working as a
Lekhpal, and as such he was fully aware of
the ongoing proceedings. The petitioner
had full opportunity to file his written
statement but he chose not to do the same.
It is not the case of the petitioner that he
was not aware about the suit. There is no
convincing and cogent reason provided by
the petitioner for not filing his written
statement for such an extremely long
period of time, and therefore, at this
distance of time, the petitioner cannot be
permitted
to
file
written
statement.
2 All. Ganga Ram Vs. State of U.P. & Ors.
1381

13. The petition is devoid of merit
and is accordingly dismissed
----------
(2020)02ILR A1381

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.02.2020

BEFORE
THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 987 of 2010

Ganga Ram ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rajendra Singh Kushwaha

Counsel for the Respondents:
C.S.C.

A. Petitioner-challenging order-rejecting his
appeal-showing deficiency in the stamp duty-as
petitioner using it-for residential purposefinding based on presumption-as land indispute
surrounded by abadi-ex parte-spot inspectionno notice to petitioner-u/s. 33 r/w 47A & R7(2)-collector-may inspect-the property-after
due notice to the parties-Collector-failed to
exercise the same-committing gross violation-of
provisions of Indian Stamp Act-made ordersrelying upon the ex parte report. Petition
Allowed.

B. Held, this Court has carefully examined the
village map, a copy of which, has been filed as
Annexure-9 to the petition. Plot no.381, 1/4th
part of which had been bought by the
petitioner through the Sale Deed executed on
16.6.20017, has been shown as Domat-1 in the
village map. Domat-1 is a category of soil, on
the basis of which, land revenue or ''lagaan' is
determined for agricultural land, but the village
map does not show the property in question to
be situated in the middle of village Abadi. This
Court fails to understand as to when power
was given to respondent no.4 to make an on
the spot inspection of the property in question,
then why the same was not exercised and on
the spot inspection was not carried out and the
ex-parte
report
of
the
Sub
Registrar,
Mohammdi, Lakhimpur Kheri alone was relied
upon in passing the orders impugned. Writ
petition stands allowed.

Writ Petition allowed. (E-8)

List of cases cited:-

1. Sumati Nath Jain vs. State of U.P. and
another, 2016 (2) ADJ 533,

2. Smt. Pushpa Sareen vs. State of U.P.,2015
(3) ADJ 136.

3. Smt. Prakashwati vs. Chief Controlling
Revenue Authority, Board of Revenue, U.P. at
Allahabad and others, (1996) 4 SCC 657

4. State of U.P. and other vs. Ambrish Tandon
and another, (2012) 5 SCC 566

5. Shakeel Ahmad vs. Additional Commissioner,
Judicial, Faizabad, Writ Petition No.1494 (MS)
of 2009

6. Hridya Narayan Mishra vs. Commissioner,
Allahabad Division and another Writ Petition
No.3126 (MS) of 2009

7. Smt. Kusum Lata Jaiswal vs. State of U.P.
and others, 2010(2) ADJ 274

8. Dinesh Tiwari vs. Commissioner, Gorakhpur
and others, 2012(3) AWC 2343: 2011(10) ADJ
1 (NOC)

9. Ramesh Chand Bansal and others vs. District
Magistrate/Collector, Ghaziabad and others, AIR
1999 SC 2126
(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. This petition has been filed by the
petitioner challenging the order dated
5.2.2010
passed
by
the
Appellate
Authority, rejecting the appeal of the
petitioner against the order passed by the