# Raiesh Kumar Aggarwal v. K.K. Modi

- **Citation:** (2007) 1 ILRA 47
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-08-28
- **Case number:** Civil Misc. Application No. 206 of 2006
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raiesh-kumar-aggarwal-v-k-k-modi-40881
- **Pages:** 5

## Headnote

Code of Civil Procedure-Order 8 rule-IWritten statement not filed within 90
days-Trail court proceeded ex-parteeven when the counsel for defendant
sought adjournment of his case-once the
court allowed the defendant to contest
the case-15 days delay in filing w.s.-can
not
come
in
the
way-held-written
statement can be filed even after expiry
statuary period for reasonable cause.

Held: Para 12

Therefore, in the opinion of the Court, a
liberal
approach
should
have
been
adopted by the Court below in permitting
the
defendant
to
file
the
written
statement. Admittedly, the delay in filing
the written statement was only 15 days.
Since the trial court had allowed the
defendant to contest the matter on
merit, the Court ought to have allowed
the
defendant
to
file
the
written
statement. The trail court committed an
error in rejecting the application of the
defendant seeking permission to file the
written statement.
Case law discussed:
J.T. 2005 (4) SC-10
2005 (4) SCC-480
2005 (6) SCC-705
AIR 2006 SC-396

## Text

1 All] Triyogi Nath V. Addl. District Judge and another
47
conclusion that in spite of due diligence,
the plaintiff could not have filed the
amendment
application
before
the
commencement of the trial. A perusal of
the application seeking amendment goes
to show that there is no reason whatsoever
disclosed by the plaintiff for not having
added such a prayer at the time of filing
of the suit or having got the same
amended prior to the commencement of
the trial. The purpose of the said proviso
is that the trial of the suits should not be
delayed and once the trial commences, it
should be concluded expeditiously, unless
for some specific and valid reason the
amendment
application
is
to
be
entertained.

6. The submission of the learned
counsel for the petitioner has force that
the situation with regard to the property
remained the same at the time of filing of
the suit and when the amendment
application was filed, and in case if the
respondent had so desired, he could have
made the prayers sought by means of the
amendment, at the time of filing the suit
itself, and by adding it subsequently after
7 years of the filing of the suit, and after
the issues had been framed and evidence
was going on, the interest of the
petitioner-defendant shall be prejudiced.

7.

Learned
counsel
for
the
respondent has relied upon a decision of
the Apex Court rendered in the case of
Raiesh Kumar Aggarwal Vs. K.K. Modi
2006 All.C.J. 989 wherein it has been
held that an amendment which does not
change the basic structure of the suit,
should be permitted, specially when the
party can file an independent suit for the
same relief. The facts of the said case
were different as the proviso clause of
Rule 17 of Order VI C.P.C. was not
attracted in the said case.

8. In the present case, it has
been specifically argued by the petitioner
and not disputed by the respondent that
the trial of the suit had commenced at the
time
of
filing
of
the
amendment
application and as such the proviso to
Rule 17 would be attracted and in the
absence of the plaintiff-respondent having
been able to show that in spite of due
diligence, he could not have raised the
issue involved in the amendment before
the commencement of the trial, allowing
of the amendment application would not
be justified in law.

9. As such the orders impugned in
this writ petition are liable to be set aside.

10. This writ petition succeeds and
is allowed. The orders dated 12.5.2004
passed by the Additional District Judge,
Court No. 5, Saharanpur and dated
20.9.2003 passed by the Civil Judge
(Junior Division), Hawali, Saharanpur are
quashed. No order as to costs.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.08.2006

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Application No. 206 of 2006

Triyugi Nath ...Defendant/Applicant
Versus.
Additional District Judge, and another

 ...Plaintiff/ Opp.Parties

Counsel for the Applicant:
Sri Ashish Srivastava
48 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Counsel for the Opposite Parties:
Sri B.B. Paul
Sri A.P. Paul
S.C.

Code of Civil Procedure-Order 8 rule-IWritten statement not filed within 90
days-Trail court proceeded ex-parteeven when the counsel for defendant
sought adjournment of his case-once the
court allowed the defendant to contest
the case-15 days delay in filing w.s.-can
not
come
in
the
way-held-written
statement can be filed even after expiry
statuary period for reasonable cause.

Held: Para 12

Therefore, in the opinion of the Court, a
liberal
approach
should
have
been
adopted by the Court below in permitting
the
defendant
to
file
the
written
statement. Admittedly, the delay in filing
the written statement was only 15 days.
Since the trial court had allowed the
defendant to contest the matter on
merit, the Court ought to have allowed
the
defendant
to
file
the
written
statement. The trail court committed an
error in rejecting the application of the
defendant seeking permission to file the
written statement.
Case law discussed:
J.T. 2005 (4) SC-10
2005 (4) SCC-480
2005 (6) SCC-705
AIR 2006 SC-396

(Delivered by Hon'ble Tarun Agarwala, J.)

1. A suit for eviction and for arrears
of damages was filed. The summons was
served upon the defendant on 12.7.2004.
The written statement was to be filed by
12.10.2004, i.e., within 90 days from the
date of the service of the summons. The
defendant did not file the written
statement within the said period. On
21.10.2004, an adjournment application
was moved by the defendant praying for
an adjournment on the ground that his
counsel was suffering from a viral fever.
The Court by an order dated 28.10.2004
rejected the application of the defendant
and directed that the case to proceed
exparte, since the defendant had not filed
a written statement. An application for
recall of this order was filed by the
defendant
alleging
that
the
written
statement was ready, but could not be
filed, as his counsel was unwell, and
therefore, prayed that the order be recalled
and the defendant be permitted to file the
written statement. The Court below, after
hearing the parties, allowed the recall
application and recalled its order dated
21.10.2004 and permitted the defendant to
appear and contest the matter, but
debarred the defendant from filing his
written statement. A second application
was filed by the defendant again praying
that the defendant should be permitted to
file the written statement, as there was
only a small delay and that there was no
intention on his part to delay the
proceedings.
This
application
was
rejected by an order dated 13.7.2006 on
the ground that no written statement could
be permitted to be filed after the expiry of
90 days. Consequently, the writ petition.

2. Heard Sri Ashish Srivastava, the
learned counsel for the petitioner and Sri
B.B. Paul, the learned counsel for the
respondent.

3. The learned counsel for the
respondent submitted that the order dated
4.2.2005 had become final and that no
review application nor a revision was
filed against the said order, and therefore,
the said order could not be set aside in the
present proceedings under Article 227 of
the Constitution of India. The learned
counsel for the respondents submitted that
1 All] Triyogi Nath V. Addl. District Judge and another
49
the petitioner had an alternative remedy
against the order dated 13.7.2006 by filing
a revision under Section 115 of the Code
of Civil Procedure.

4. The learned counsel for the
respondent further submitted that in view
of the provision of Order 8 Rule 1of the
C.P.C., no written statement could be
filed after 90 days, inasmuch as, the said
provision is mandatory in nature and that
time could not be extended beyond 90
days for the purpose of filing the written
statement.

5. In the opinion of the Court, the
submission made by the learned counsel
for the respondents is bereft of merit.

6. In the opinion of the Court, this is
a fit case where the Court should exercise
its power under Article 227 of the
Constitution, rather than delegating the
petitioner to a remedy of filing a revision.
Substantial justice is required to be done
rather than take a technical approach in
the matter. The Supreme Court in the case
of State of Nagaland Vs. Lipok AO and
others, JT 2005(4) SC 10 held "When
substantial
justice
and
technical
considerations are pitted against each
other,
cause
of
substantial
justice
deserves to be preferred for the other side
cannot claim to have vested right in
injustice being done because of a nondeliberate delay."

7. The said principle of law as
enunciated by the Supreme Court is
squarely applicable in the present case.

8. Order 8, Rule 1 of the Code of
Civil Procedure as amended by the Act
No.22 of 2002 w.e.f. 1.7.2002 reads as
under:-
"1.
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."

9. The aforesaid provision has been
interpreted by the Supreme Court in
various
judgments.
In
Kailash
vs.
Nanhku and others, 2005 (4) SCC 480,
the Supreme Court held that the nature of
the provision contained in Order 8 Rule 1
is procedural and is not a part of the
substantial law unless compelled by
express and specific language of the
statute. The provisions of CPC or any
other procedural enactment ought not to
be construed in a manner which would
leave
the
court
helpless
to
meet
extraordinary situations in the ends of
justice. The Supreme Court held-

"Considering the object and purpose
behind enacting Rule 1 of Order 8 in the
present form and the context in which the
provision is placed, we are of the opinion
that the provision has to be construed as
directory
and
not
mandatory.
In
exceptional situations, the court may
extend the time for filing the written
statement though the period of 30 days
and 90 days, referred to in the provision,
has expired."

10. In Rani Kusum (Smt.) Vs.
Kanchan
Devi
(Smt)
and
others,
50 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
reported in 2005 (6) SCC 705, the
Supreme Court held as under:-

"Order 8Rule 1 of the amendment
casts an obligation on the defendant to file
the written statement written within 30
days from the date of service of summons
on him and within the extended time
falling within 90 days. The provision does
not deal with the power of the court and
also does not specifically take away the
power of the court and also does not
specifically take away the power of the
court to take the written statement on
record though filed beyond the time as
provided for. Further, the nature of the
provision contained in Order 8 Rule 1 is
procedural. It is not a part of the
substantive law.
It is also to be noted that thought the
power of the court under the proviso
appended
to
Rule
1
Order
8
is
circumscribed by the words " shall not be
later
that
ninety
days"
but
the
consequences flowing from non-extension
of time are not specifically provided for
though they may be read in by necessary
implication. Merely because a provision
of law is couched in a negative language
implying mandatory character, the same is
not without exceptions. The Courts, when
called upon to interpret the nature of the
provision, may, keeping in view the entire
context in which the provision came to be
enacted, hold the same to be director
though worded in the negative form."

11. In Shaikh Salim Haji Abdul
Khayumsab vs. Kumar and others,
AIR 2006 SC 396, the Supreme Court
again held that even though the provision
of Order 8, Rule 1 C.P.C. is couched in a
negative language, the said provision is
directory in nature and that the Court has
the inherent power to extend the time in
filing the written statement for reasons to
be recorded.

12. In the present case, the Court
proceeded
exparte
inspite
of
an
adjournment application being filed by
the defendant. The said order to proceed
exparte was recalled because the Court
found that the counsel for the defendant
was ill. It has come on record that the
written statement was ready, but could not
be filed on account of the fact that the
defendant's
counsel
had
fallen
ill.
Therefore, in the opinion of the Court, a
liberal
approach
should
have
been
adopted by the Court below in permitting
the defendant to file the written statement.
Admittedly, the delay in filing the written
statement was only 15 days. Since the
trial court had allowed the defendant to
contest the matter on merit, the Court
ought to have allowed the defendant to
file the written statement. The trail court
committed an error in rejecting the
application of the defendant seeking
permission to file the written statement.

13. For the reasons stated aforesaid,
the writ petition is allowed. The orders
dated 4.2.2005 and 13.7.2006 are set
aside. The written statement filed by the
petitioner-defendant shall be taken on
record subject to the payment of cost of
Rs.2,000.00, which shall be deposited by
the petitioner within three weeks from the
date of the production of a certified copy
of the order. The said amount shall be
withdrawn by the plaintiff.

14. It is further directed that the suit
shall be decided by the trial court within a
period of six months.
Petition Allowed.
---------
1 All] Lokman Singh V. Dy. G.M., Western Zone, U.P.S.R.T.C., Meerut and others
51
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2006

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.22514of 1997

Lokman Singh

...Petitloner
Versus.
Deputy General Manager, Western Zone,
U.P.8.R.T.C. Meerut & others ...Respondents

Counsel for the Petitioner:
Sri Brijesh Sahai
Sri Satyanshu Ojha
Sri R.K. Ojha
Sri V.P. Singh
Smt. Krishna Singh
Sri Suman Kumar Yadav
Sri Akhilesh Misra

Counsel for the Respondents:
Sri Sameer Sharma
Sri Sheshshadri Dwivedi
S.C.

Constitution
of
India,
Art.
226Alternative Remedy-termination order
challenged-pending for long period of 10
years-after
exchange
of
counterRejoinder
affidavit-held
alternative
remedy No bar.

Held: Para 4

No doubt, the petitioner has·a remedy of
raising
a
dispute
under
the
U.P.
Industrial Disputes·Act. However, since
the petition was entertained in the year
1997
and
counter
and
rejoinder
affidavits have been exchanged, it would
not be proper for the Court to relegate
the petitioner to an alternative remedy
under the Industrial Disputes Act at this
stage, and that too, after a period of
almost 10 years. Consequently, the
preliminary
objection
made
by
the
learned counsel for the respondents is
rejected.

(B) Constitution of India, Art. 226Dismissal-No
finding
recoverded
by
disciplinary authority-about the charges
found established-No show cause notice
given-about dis agreement with the
finding recorded by the enquiry officerdismissal order-held not sustainable.

Held: Para 11 & 12

A perusal of the show cause notice
indicates that no reasons had been given
by
the
disciplinary
authority
while
disagreeing with thefindings of the
enquiry officer. The show cause notice
only quotes the charges levelled against
the petitioner which, by itself, did not
amount to a disagreement with the
findings given by the enquiry officer, nor
would it amount to a disclosure of the
reasons of the disciplinary authority.

Further, the, order of dismissal does not
indicate that the disciplinary authority
had found that the charges against the
petitioner stood proved. Consequently, in
the absence of any findings that the
charges
stood
proved
against
the
petitioner, the Court is of the opinion
that the order of dismissal against the
sole charge that was found proved by
the enquiry officer, by itself, cou1d not
be
a
ground
for
dismissal
of
the
petitioner.
2005 (7) SCC-597
1999 (83) FLR-534

(Delivered by Hon'ble Tarun Agarwala, J.)

1. A checking squad of the U.P.
State Roadways Transport Corporation
stopped Bus No. UGE 507 on 18.12.1993
and upon checking, found, that out of 95
passengers, 48 passengers were travelling
without, tickets. On the basis of the
checking
report, the
petitioner was
suspended on 14.12.1993 and a charge
sheet dated 11.1.1994 was issued. The