# Ram Nath & Anr v. Smt Pushpa

- **Citation:** (2019) 1 ILRA 1330
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-15
- **Case number:** Matters Under Article 227 No. 5176 of 2019
- **Bench:** Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-nath-anr-v-smt-pushpa-44406
- **Pages:** 3

## Headnote

A. Civil Procedure Code, 1908 Order 8
Rule
1
Delay
in
Filing
of
written
statement
beyond
statutory
period
cannot be condoned as a matter of
course but only by way of exception as
Order 8 Rule 1 is directory-extension of
time will be allowed in exceptional
circumstances.
No illegality in the order passed by the Court
below declining to take written statement on
record-Petitioners have succeeded in getting
the proceedings delayed for almost Fifteen
years- Hence defeating the very object with
which time limit is provided under Order 8 rule
1- such conduct on part of a litigant is highly
deplorable- Petition dismissed with a cost of
Rs. 10,000/- ( Para 2, 4, 7, 8 )

Case Law dismissed: -
Kailash Versus Nanhku and others, AIR 2005
CS 441 (E-2)

## Text

1330 INDIAN LAW REPORTS ALLAHABAD SERIES
maturity amount along with interest, if
any, in favour of the petitioners, within a
period of four weeks from the date of
receipt of certified copy of this order.

10.

The
petition
is
allowed
accordingly.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.07.2019

BEFORE
THE HON'BLE MANOJ KUMAR GUPTA, J.

Matters Under Article 227 No. 5176 of 2019

Ram Nath & Anr. ...Petitioners
Versus
Smt Pushpa ...Respondent

Counsel for the Petitioners:
Sri Dushyant Singh, Sri M.C. Singh.

Counsel for the Respondent:
C.S.C.

A. Civil Procedure Code, 1908 Order 8
Rule
1
Delay
in
Filing
of
written
statement
beyond
statutory
period
cannot be condoned as a matter of
course but only by way of exception as
Order 8 Rule 1 is directory-extension of
time will be allowed in exceptional
circumstances.
No illegality in the order passed by the Court
below declining to take written statement on
record-Petitioners have succeeded in getting
the proceedings delayed for almost Fifteen
years- Hence defeating the very object with
which time limit is provided under Order 8 rule
1- such conduct on part of a litigant is highly
deplorable- Petition dismissed with a cost of
Rs. 10,000/- ( Para 2, 4, 7, 8 )

Case Law dismissed: -
Kailash Versus Nanhku and others, AIR 2005
CS 441 (E-2)
(Delivered by Hon'ble Manoj Kumar Gupta J.)

1. The instant petition has been filed
challenging the order dated 28.2.2009
passed by Additional District Judge,
Court No. 1, Agra dismissing Civil
Revision No. 4 of 2008 and orders dated
20/21.11.2017 and 3.5.2019 passed by the
trial court.

2. The fact of the case are alarming.
The plaintiff-respondent instituted Suit
No. 703 of 2003 against the petitioners for
permanent prohibitory injunction. The
defendants
were
duly
served
with
summons on 25.04.2004. They did not
file written statement within 30 days as
contemplated under Order 8 Rule 1
C.P.C. They also did not file written
statement within further period of 90
days. They filed the written statement on
10.2.2005 i.e. much after the expiry of
statutory period prescribed under Order 8
Rule 1 C.P.C. The plaintiff objected to the
filing of the written statement beyond
statutory period and whereupon, the
defendant-petitioners filed an application
62-Ga dated 23.10.2007 for condoning
delay in filing the written statement. In
the application, the petitioners stated that
they had filed WS without unnecessary
delay. They also stated that negligible
delay, if any, in filing the written
statement be condoned. The trial court by
order dated 20/21.11.2017 relying on
judgment of Supreme Court in Kailash v.
Nanhku and Others, AIR 2005 SC 2441
and other judgments following the said
judgment, rejected the application 62-Ga
filed by the petitioners for condoning the
delay in filing written statement and
directed for proceedings being held as per
Order 8 Rule 10 C.P.C. Aggrieved
thereby,
the
petitioners
filed
Civil
Revision No. 4 of 2008. The same was
1 All. Ram Nath & Anr. Vs. Smt. Pushpa
1331
dismissed by order dated 28.2.2009. The
petitioner did not challenge the order of
the Revisional Court before any higher
court but instead, filed an application 127Ga for review of the order dated
20/21.11.2007. The petitioners succeeded
in getting the proceedings of the suit
delayed on basis of the said application
for twelve years. The application has
ultimately been dismissed by the trial
court by order dated 3.5.2019.

3. The sole submission made by Shri
M.C. Singh, learned counsel for the
petitioners is that the court below erred in
refusing to take on record the written
statement. It is urged that there was delay
of only few days and therefore, the courts
below ought to have taken the written
statement on record, as the interest of the
plaintiff
could
be
safeguarded
by
imposing cost. It is also urged that
provisions of Order 8 Rule 1 C.P.C. are
only directory in nature and therefore, the
courts ought not to have taken a technical
view in the matter.

4. In Kailash (supra), the Supreme
Court though held that provision of Order
8 Rule 1 C.P.C. being in the realm of
procedural law is directory in nature but
also held that delay in filing written
statement cannot be condoned as a matter
of course but only by way of exception. In
this regard, the relevant observations
made by the Supreme Court in paragraph
45 (v) reads as under:

"Though Order 8 Rule 1 CPC is
a part of procedural law and hence
directory, keeping in view the need for
expeditious trial of civil causes which
persuaded Parliament
to enact the
provision in its present form, it is held
that ordinarily the time schedule contained
in the provision is to be followed as a rule and
departure therefrom would be by way of
exception. A prayer for extension of time
made by the defendant shall not be granted
just as a matter of routine and merely for the
asking, more so when the period of90 days
has expired. Extension of time may be allowed
by way of an exception, for reasons to be
assigned by the defendant and also be placed
on record in writing, howsoever briefly, by the
Court on its being satisfied. Extension of time
may be allowed if it is needed to be given for
circumstances
which
are
exceptional,
occasioned by reasons beyond the control of
the defendant and grave injustice would be
occasioned if the time was not extended. Costs
may be imposed and affidavit or documents in
support of the grounds pleaded by the
defendant for extension of time may be
demanded, depending on the facts and
circumstances of a given case."

5. A perusal of the application filed by
the petitioners seeking condonation of delay
reveals that it does not disclose any ground
whatsoever for getting the delay condoned.
The application only mentions that if there is
any delay, the same be condoned.

6. In considered opinion of the
Court, in absence of any explanation, the
case does not fall within the exception
carved out by the Supreme Court. The
Supreme court has held that the extension
of time will be allowed in exceptional
circumstances occasioned by reasons
beyond the control of the defendant.

7. In such view of the matter, this
Court finds no illegality in the impugned
orders passed by courts below declining
to take written statement on record.

8. It is noteworthy that the issue in
question came to be raised soon after
1332 INDIAN LAW REPORTS ALLAHABAD SERIES
filing of the written statement but the
petitioners have succeeded in delaying the
proceedings of the suit on basis of the said
plea for considerable period. They filed
review application against the order of the
trial court, which had already been upheld
in revision. Again, on basis of review
application, they succeeded in getting the
proceedings delayed for almost fifteen
years, thus defeating the very object with
which time limit is provided under Order
8, Rule 1 C.P.C. Such conduct on part of
a litigant is highly deplorable.

9. Having regard to the facts of the
case, the instant petition is dismissed with
a cost of Rs. 10,000/-
-----------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.07.2019

BEFORE
THE HON'BLE MANOJ KUMAR GUPTA, J.

Matters Under Article 227 No 5629 of 2019

Smt. Prabha Devi & Ors. ...Petitioners
Versus
Brijeswar Singh &Ors. ...Respondents

Counsel for the Petitioners:
Sri Surta Bhan Dubey, Sri Ram Sajiwan
Mishra.

Counsel for the Respondents:
---

A. Code of Civil Procedure 1908 :Order
22 rule 4 (2) and Order 8 Rule 9. A
counter claim could be filed normally
Under Order 8 rule 9 C.P.C. but that has
to be with the Leave of the Court. Which
granting such leave, the Court will also
have regard to the conditions stipulated
Under Order 6 rule 17 C.P.C. as a Counter
claim
In
case
of
legal
representative
of
deceased defendant, the further rider
Under Order 22 rule 4(2) C.P.C. is that he
can only take defence appropriate to his
charactor as legal representative of the
deceased party. He cannot set up a
different case. (Para 5,6,7,8)

Writ Petition dismissed.
 (E-2)
(Delivered by Hon'ble Manoj Kumar Gupta J.)

1. The instant petition is directed against
the order dated 1.5.2019 passed by Additional
District Judge, Court No.7, Varanasi in Civil
Revision No.24 of 2018. The revision has
been allowed and the order of the trial court
dated 10.1.2018, permitting the petitioners to
file counter claim along with additional
written statement has been set aside. The
reivisional court has directed the trial court to
decide the application 166-C afresh.

2. The husband of petitioner no.1
and father of petitioners no.2 to 4 was
defendant no.4 in Original Suit No. 276 of
2008. It is not in dispute that he filed a
written statement on 6.4.2009. He died on
8.4.2013 during pendency of the suit. The
petitioners were substituted in his place
by order dated 11.4.2014. After their
substitution,
the
petitioners
filed
application 166-C for permission to file
additional written statement alongwith
counter claim. The trial court allowed the
application for taking on record additional
written statement along with counter
claim by order dated 10.1.2018 observing
that the petitioners, who came on record
by way of substitution, did not have the
opportunity to file counter claim earlier,
therefore, the application deserves to be
allowed.

3. The revisional court, not satisfied
with the view taken by the trial court, has