# Ram Saran Defendant v. Smt. Khazani. Plaintiff

- **Citation:** (2005) 1 ILRA 251
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005
- **Case number:** Second Appeal No. 1057 of 2004
- **Bench:** Janardan Sahai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-saran-defendant-v-smt-khazani-plaintiff-40435
- **Pages:** 4

## Headnote

(A) Code of Civil Procedure-S.-149-'Date
of the institution of suit' what is ? either
the date on which plaint presented on
the day on which the court issued
summons-held-in
view
of
amended
provision
the
date
of
issuance
of
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INDIAN LAW REPORTS ALLAHABAD SERIES
[2005
 252
summon to be the deemed institution of
suit.

Held: Para 5

A suit can be said to be duly instituted
for the purposes of issuance of summons
when
in
fact
it
has
become
duly
instituted and not from a retrospective
date which for certain purposes may be
treated
as
the
deemed
date
of
institution. The date of payment of court
fee and registration of the suit and
issuance of summons was as we have
seen after the provisions of the amended
Civil Procedure Code had come into
force. The amended provisions were
therefore applicable for issuance of
summons.

(B) Code of Civil Procedure-Order 8 r.
1,9,10 read with Section 157, 148-Time
limit for filling written statement-90
days-whether can be extended by the
court on its dissertation? Held-'No'

Held: Para 6

A Division Bench of the Karnataka High
Court in A.I.R. 2004 Karnataka 246 (A.
Sathyapal and others vs. Smt. Yasmin
Banu Ansari and others) has interpreted
the provisions of Order 8 Rules 1, 9 and
10 and Sections 157 and 148 Civil
Procedure Code and has held that the
time for filing the written statement
cannot be extended beyond 90 days from
the date of service of summons and the
power under the proviso to Rule 1 to
extend
time
limited
to
the
period
provided under the proviso. The decision
of the Karnataka High Court has been
followed by our Court in 2004 (2) ARC
779 ( Nanku Vs. Kailash and others). The
decision relied upon by Sri Dhan Prakash
in Topline Shoes Vs. Corporation Bank
has been considered in Nanku's case and
it has been held that the court does not
have any discretion to extend the time
beyond that provided under the proviso
to Order 8 Rule 1 Civil Procedure Code.
As such the submission of the learned
counsel for the appellant that the court
had discretion to extend the time cannot
be accepted.
Case law discussed:
AIR 2004 Karnatka 246
(2004) 2 ARC 779

## Text

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1All]
Ram Saran V. Smt. Khazani
251
another sum of Rs. 6 lacs, the bonafide of
the petitioner cannot be doubted. The
penalty amount, which is in question in
the present writ petition, itself could not
be finalized even by the impugned order
dated 25.2.1995 and was left subject to
the decision of the Civil Court as well as
final decision as per the arbitration clause.
When the respondents themselves could
not finalize the amount of stamp duty
which was payable, the petitioner cannot
be said to be at fault for not paying the
same. However, now during the pendency
of this writ petition the lease deed has
been executed on an amount received by
the Kanpur Development Authority that
included the principal amount and the
interest paid thereon. Accordingly, the
stamp duty of about Rs. 84 lacs has
already been paid, which is more than the
stamp duty assessed by the impugned
orders dated 6.2.1995 and 25.2.1995. As
such the dispute relating to payment of
stamp duty has now been resolved only
during the pendency of this writ petition.
Thus the penalty could not be levied prior
to the assessment of the stamp duty on the
document, which was finalised only after
the passing of the impugned orders. The
bonafide of the petitioner, thus, cannot be
doubted and the stamp duty amount when
called for from the petitioner had been
paid by him partially in 1994, and
thereafter finally when the lease deed was
executed.

14. As such in my view, in the facts
and circumstances of this case, and in
view of the discussion here in above,
under law, the penalty could not have
been imposed on the petitioner. The
impugned orders dated 6.2.1995 and
25.2.1995 passed by Respondent nos. 3
and 2 respectively thus deserve to be
quashed.

15.

The
petitioner
has
also
challenged the impugned order dated
25.2.1995 on the ground that the same
could not have been passed on a date prior
to 6.3.1995 fixed for hearing of the case
(as 25.2.1995 was fixed only for deciding
the stay matter); and that the date had
been proponed without notice, merely on
an oral request made by the respondents.
But this argument of the petitioner is not
being gone into in view of the fact that I
have heard and decided the issues
involved in this writ petition on merits
itself.

16. The writ petition is, accordingly,
allowed. The order dated 6.2.1995 passed
by Respondent no.3 and the order dated
25.2.1995 passed by Respondent no.2 are
thus quashed. No order as to cost.
Petition allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.12.2005

BEFORE
THE HON'BLE JANARDAN SAHAI, J.

Second Appeal No. 1057 of 2004

Ram Saran
... Defendant-Appellant
Versus
Smt. Khazani. ...Plaintiff-Respondent

Counsel for the Appellant:
Sri Dhan Prakash

Counsel for the Respondent:
Sri Pankaj Mithal

(A) Code of Civil Procedure-S.-149-'Date
of the institution of suit' what is ? either
the date on which plaint presented on
the day on which the court issued
summons-held-in
view
of
amended
provision
the
date
of
issuance
of
http://www.allahabadhighcourt.nic.in

INDIAN LAW REPORTS ALLAHABAD SERIES
[2005
 252
summon to be the deemed institution of
suit.

Held: Para 5

A suit can be said to be duly instituted
for the purposes of issuance of summons
when
in
fact
it
has
become
duly
instituted and not from a retrospective
date which for certain purposes may be
treated
as
the
deemed
date
of
institution. The date of payment of court
fee and registration of the suit and
issuance of summons was as we have
seen after the provisions of the amended
Civil Procedure Code had come into
force. The amended provisions were
therefore applicable for issuance of
summons.

(B) Code of Civil Procedure-Order 8 r.
1,9,10 read with Section 157, 148-Time
limit for filling written statement-90
days-whether can be extended by the
court on its dissertation? Held-'No'

Held: Para 6

A Division Bench of the Karnataka High
Court in A.I.R. 2004 Karnataka 246 (A.
Sathyapal and others vs. Smt. Yasmin
Banu Ansari and others) has interpreted
the provisions of Order 8 Rules 1, 9 and
10 and Sections 157 and 148 Civil
Procedure Code and has held that the
time for filing the written statement
cannot be extended beyond 90 days from
the date of service of summons and the
power under the proviso to Rule 1 to
extend
time
limited
to
the
period
provided under the proviso. The decision
of the Karnataka High Court has been
followed by our Court in 2004 (2) ARC
779 ( Nanku Vs. Kailash and others). The
decision relied upon by Sri Dhan Prakash
in Topline Shoes Vs. Corporation Bank
has been considered in Nanku's case and
it has been held that the court does not
have any discretion to extend the time
beyond that provided under the proviso
to Order 8 Rule 1 Civil Procedure Code.
As such the submission of the learned
counsel for the appellant that the court
had discretion to extend the time cannot
be accepted.
Case law discussed:
AIR 2004 Karnatka 246
(2004) 2 ARC 779

(Delivered by Hon'ble Janardan Sahai, J.)

1. A suit for possession and damages
for use and occupation was filed by the
plaintiff/respondent,
which
has
been
decreed by both the courts below applying
the provisions of Order 8 Rule 10 Civil
Procedure Code. The plaint was presented
on 20.5.2002 but it is not in dispute that
the full court fee was not then paid. The
suit was registered on 27.8.2002 after
payment of court fee on that very day.
The amendments by the Civil Procedure
Code Amendment Act 22 of 2001 had
come into force with effect from Ist July
2002 which was after the presentation of
the plaint and before the registration of
the suit. Summons were issued on
2.9.2002 fixing 3.10.2002 for appearance
of the defendant and for filing of the
written statement and 10.10.2002 for
issues. The defendant/appellant appeared
and sought adjournment on 10.10.2002
for filing the written statement. The court
granted time. On 21.1.2003 the case was
adjourned to enable the defendant to file
written statement and the court fixed
4.3.2003. On 4.3.2003 the defendant
again sought adjournment and the court
adjourned the case but passed an order
that no further time would be granted and
fixed 8.5.2003. On 8.5.2003 there was a
strike of the lawyers and again the case
was adjourned to 27.5.2003 on which date
the
defendant/appellant
sought
adjournment, which was refused and the
right to file written statement was
forfeited. It appears that the defendant
moved an application for taking the
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Ram Saran V. Smt. Khazani
253
written statement on the record, which
application was rejected by the trial court
on 11.9.2003. The suit was then decreed
under Order 8 Rule 10 Civil Procedure
Code on 19.9.2003. The appeal against
the decree filed by the appellant was
dismissed.

2. I have heard Sri Dhan Prakash,
learned counsel for the appellant and Sri
Pankaj Mittal, learned counsel for the
respondent.

3. Under the provisions of the Civil
Procedure Code before the amendment
the court had discretion to extend the time
for filing the written statement without
limit. The proviso to the amended Order
VIII Rule 1 however limits this discretion
to a period of 90 days from the date of
service of summons upon the defendant.

4. It was submitted by Sri Dhan Prakash,
learned counsel for the appellant that by
virtue of the provisions of Section 149 of
the Civil Procedure Code the suit would
be deemed to have been instituted on the
date the plaint was presented, namely, on
20.5.2002 and as such the provisions of
the unamended Civil Procedure Code
were applicable and consequently the
court had discretion to extend the time for
filing the written statement without limit
and the provisions of Order 8 Rule 1 Civil
Procedure Code as amended by the Civil
Procedure Code Act 22 of 2002 were not
applicable. It is also submitted that the
outer limit of 90 days fixed under the
proviso to Order 8 Rule 1 is only
directory and not mandatory. In support
of his second submission he places
reliance upon the decision of the Apex
Court in A.I.R. 2002 SC 248 Topline
Shoes Ltd. Corporation Bank.

5. The consequence of applying
Section 149 Civil Procedure Code is that
the suit would be deemed to have been
presented on 20.5.2002. However, it is
clear from the fact that before the suit was
registered the amended provisions of the
Civil
Procedure
Code
had
become
applicable. Order 5 Rule 1 of the Civil
Procedure
Code
provides
that
the
summons will be issued in a duly
instituted suit. No doubt the suit would be
deemed to have been duly instituted for
the purpose of limitation on 20.5.2002 but
no summons could have been issued in
fact on 20.5.2002 because the order for
issuance of the summons could have been
passed only after actual payment of the
court fee and registration of the suit. A
suit can be said to be duly instituted for
the purposes of issuance of summons
when in fact it has become duly instituted
and not from a retrospective date which
for certain purposes may be treated as the
deemed date of institution. The date of
payment of court fee and registration of
the suit and issuance of summons was as
we have seen after the provisions of the
amended Civil Procedure Code had come
into force. The amended provisions were
therefore applicable for issuance of
summons.

6. A Division Bench of the
Karnataka High Court in A.I.R. 2004
Karnataka 246 (A. Sathyapal and others
vs. Smt. Yasmin Banu Ansari and others)
has interpreted the provisions of Order 8
Rules 1, 9 and 10 and Sections 157 and
148 Civil Procedure Code and has held
that the time for filing the written
statement cannot be extended beyond 90
days from the date of service of summons
and the power under the proviso to Rule 1
to extend time limited to the period
provided under the proviso. The decision
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INDIAN LAW REPORTS ALLAHABAD SERIES
[2005
 254
of the Karnataka High Court has been
followed by our Court in 2004 (2) ARC
779 ( Nanku Vs. Kailash and others). The
decision relied upon by Sri Dhan Prakash
in Topline Shoes Vs. Corporation Bank
has been considered in Nanku's case and
it has been held that the court does not
have any discretion to extend the time
beyond that provided under the proviso to
Order 8 Rule 1 Civil Procedure Code. As
such the submission of the learned
counsel for the appellant that the court
had discretion to extend the time cannot
be accepted. On facts also it appears that
the appellant was granted sufficient time.
The relevant dates in this connection have
already been referred to above in this
order. It is clear that the case was
adjourned on 10.10.2002, 19.11.2002,
21.1.2003, 4.3.2003 and 8.5.2003 and on
4.3.2003 last opportunity was granted to
the appellant. In the circumstances the
order passed by the court below refusing
to grant any further time and forfeiting the
right to file the written statement and
applying the provisions of Order 8 Rule
10 was justified. The applicant has been
granted more time than was required.
There is no merit in this appeal.
Dismissed.
Appeal dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2005

BEFORE
THE HON'BLE K.N. OJHA, J.

Criminal Misc. Application No. 3908 of
2004

Rakesh Kumar Gupta and two others

...Applicants
Versus
State of U. P. and two others

 ...Opposite Parties
Counsel for the Applicants:
Sri Kumar Anish
Sri B.D. Mandhyan
Sri Satish Mandhyan

Counsel for the Opposite Parties:
Sri S.D. Kautilya
Sri K.M. Tripathi

U.P. Municipal Corporation Act 1959Section-570-Code of Criminal ProcedureSection-482-quashing
of
Criminal
proceeding complaint case-applicant an
employee
of
Municipal
Corporationapplicants
made
compliance
of
the
direction
given
by
Mukhya
Nagar
Adhikari to remove the encroachments
made by the complainant on the path of
Nagar Parishad-during the course of
official
duty-they
are
protected
by
Section 570 of the Act-complaint case
against the applicants-can not proceedaccordingly Quashed.

Held: Para 12

When police force was made available
the applicants made compliance of the
order passed by the Mukhya Nagar
Adhikari. Thus it is a clear case in which
the applicants acted in discharge of their
official duties and therefore, they are
protected by Section 570 of the U.P.
Municipal Corporation Act, 1959 and
complaint case against the applicants
cannot proceed.
Case law discussed:
AIR 1979 SC- 1841
AIR 1999 SC-1437
2000 SCC (Crl.) 872

(Delivered by Hon'ble K. N. Ojha, J.)

1. Instant application has been
moved by Rakesh Kumar Gupta and two
others, employees of Nagar Nigam,
Gorakhpur, under Section 482 Cr.P.C. to
quash proceeding of Complaint Case No.
1189 of 2002 pending against them in the
Court
of
Additional
Chief
Judicial