# Sheshmani Nath Tripathi(S.N. Tripathi in Short) v. Sri Dinesh Rawat

- **Citation:** (2022) 12 ILRA 648
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-19
- **Case number:** Election Petition No. 7 of 2022
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sheshmani-nath-tripathi-s-n-tripathi-in-short-v-sri-dinesh-rawat-47963
- **Pages:** 10

## Headnote

People Act, 1951 - Section 80A - High
Court to try election petitions, Section
86 (7) - conclusion of trial within six
months, Section 87
- Procedure
before the High Court - Allahabad
High Court Rules, 1952 - Chapter XV-A
-
Rule
6
-
Issue
of
notice
to
respondents
,
Code
of
Civil
Procedure,1908 - Order 5 Rule 20 -
Substituted
service
-
In
case
of
conflict between the provisions of the
Representation of the People Act,
1951 and the Rules framed there
under or the Rules framed by the High
Court
in
exercise
of
the
power
conferred
by
Article
225
of
the
Constitution on the one hand, and the
Rules of Procedure contained in the
CPC on the other hand, the former
shall prevail over the latter.(Para -
29,30)

Petitioner wants errors indicated by him in
orders passed by Court to be corrected -
refusal by Court to fix an early date of 3 to
4 days - Court not acceded procedures
prescribed in CPC for service of notice -
adhered to provisions of Rules framed
under Chapter XV-A of Rules 1952 relating
to trial of election petition. (Para -
14,21)

HELD:-In case of conflict between the
rules framed by the High Court and the
12 All. Sheshmani Nath Tripathi(S.N. Tripathi in Short) Vs. Sri Dinesh Rawat
649
rules of procedure contained in CPC, it is
the rules framed by the High Court which
shall prevail. No error in the order(Para -
31)

Application rejected. (E-7)

List of Cases cited:-

## Text

648 INDIAN LAW REPORTS ALLAHABAD SERIES
Meerut. The trial for all these reasons got
delayed. Be that as it may, the accused are
entitled to speedy trial and more so fair
trial.

ORDER

(1) The writ petitions bearing Criminal
Misc. Writ Petitions No. 1294 of 2020; 622
of 2022; 7160 of 2022; 5148 of 2021; and
8758 of 2022, lack merit, accordingly,
dismissed.

(2) The transfer application bearing
Transfer Application (Criminal) No. 239 of
2020, is allowed.

(3) The trial of the cases pending
before the Special Judge, Anti Corruption,
Meerut, arising from Case Crime No. 421
of 2018, is transferred to the court of
Special Judge, Anti Corruption, CBI at
Ghaziabad.

(4)
The
Special
Judge,
Anti
Corruption, CBI at Ghaziabad, is directed
to
proceed
and
conclude
the
trial
expeditiously on day to day basis without
granting unnecessary adjournment provided
there is no other impediment.

(5) The Directorate of Enforcement,
New Delhi, to proceed and conclude the
investigation expeditiously.

(6) It is clarified that the observations
made in the order with regard to the facts,
or/and, merit of the case would have no
bearing or influence upon the trial. The trial
court shall proceed independently of the
observations made in the order without
prejudice to the accused.

(7) Learned counsel for the CBI to
supply copy of the order to the Special
Judge, Anti Corruption, CBI at Ghaziabad
and
Special
Judge, Anti
Corruption,
Meerut, for compliance.
----------
(2022) 12 ILRA 648
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.12.2022
BEFORE

THE HON'BLE ABDUL MOIN, J.

Election Petition No. 7 of 2022

Sheshmani Nath Tripathi(S.N. Tripathi in
Short) ...Petitioner
Versus
Sri Dinesh Rawat ...Respondent

Counsel for the Petitioner:
In Person

Counsel for the Respondent:
--

(A) Election - The Representation of
People Act, 1951 - Section 80A - High
Court to try election petitions, Section
86 (7) - conclusion of trial within six
months, Section 87
- Procedure
before the High Court - Allahabad
High Court Rules, 1952 - Chapter XV-A
-
Rule
6
-
Issue
of
notice
to
respondents
,
Code
of
Civil
Procedure,1908 - Order 5 Rule 20 -
Substituted
service
-
In
case
of
conflict between the provisions of the
Representation of the People Act,
1951 and the Rules framed there
under or the Rules framed by the High
Court
in
exercise
of
the
power
conferred
by
Article
225
of
the
Constitution on the one hand, and the
Rules of Procedure contained in the
CPC on the other hand, the former
shall prevail over the latter.(Para -
29,30)

Petitioner wants errors indicated by him in
orders passed by Court to be corrected -
refusal by Court to fix an early date of 3 to
4 days - Court not acceded procedures
prescribed in CPC for service of notice -
adhered to provisions of Rules framed
under Chapter XV-A of Rules 1952 relating
to trial of election petition. (Para -
14,21)

HELD:-In case of conflict between the
rules framed by the High Court and the
12 All. Sheshmani Nath Tripathi(S.N. Tripathi in Short) Vs. Sri Dinesh Rawat
649
rules of procedure contained in CPC, it is
the rules framed by the High Court which
shall prevail. No error in the order(Para -
31)

Application rejected. (E-7)

List of Cases cited:-

1. Kailash Vs Nanhku & ors. , 2005 (4) SCC 480

2. M. S. Gill Vs Chief Election Commissioner ,
1978 (1) SCC 405

(Delivered by Hon'ble Abdul Moin, J.)

(I. A. No. 4 of 2022)

1. Heard Shri Sheshmani Nath
Tripathi, petitioner who has appeared in
person.

2. The instant application under
Section 86 (7) and 87 of the Representation
of People Act, 1951 has been filed with
following prayers:

"(a) That this Hon'ble Election Court
may graciously be magnanimous to apprise
the Hon'ble Chief Justice about the paucity
of time it is faced with because of the preoccupied in the common lis between the
private parties enabling the Hon'ble Chief
Justice to invigorate this Election Court
with appropriate time to do justice to this
Assembly Constituency and defend the
democracy envisaged.

(b) That this Hon'ble Election Court
may graciously be magnanimous to correct
and rectify the errors highlighted in the
pronouncements
of
13.07.2022
and
19.09.2022 under the Maxim-Ex-debits
Justiciae so as to make the rule of law
absolute and complete."

3. Upon filing of the election petition
the Court had issued notices to the
respondent. In terms of Chapter XV-A of
the Allahabad High Court Rules, 1952
(hereinafter referred to as the Rules 1952)
notice is to be issued to the respondents in
an election petition, both by registered post
as well as by publication in a daily
newspaper. However the notice could not
be published in the newspaper as the
petitioner failed to deposit the charges as
indicated by the office.

4. When the case was taken up on
05.07.2022 the petitioner had contended
that the amount, as has been required to be
deposited by the office of this Court, is
contrary to the amount as reflected from the
official website of the newspaper namely
''Dainik Jagran' and he prayed for and was
granted time to file an affidavit bringing on
record the rates which were available on
the official website of the newspaper.

5. When the case was next listed on
13.07.2022 the petitioner was heard on
application bearing I.A. No. 2 of 2022
whereby he invited the attention of the
Court
towards
Section
87
of
the
Representation of the People Act, 1951
(hereinafter referred to as the Act 1951)
indicating that the order of the Registrar for
publication in the newspaper was not in
accordance with the Civil Procedure Code,
1908 (hereinafter referred to as the CPC)
and it may be waived and the procedures
and practices, as provided in the CPC, be
followed and summons served to the
defendants under Order 5 Rule 20 CPC
denoting substituted service.

6. This Court vide the order dated
13.07.2022 was of the view that as specific
rules have been framed under Chapter XVA of the Rules 1952 as such it is the Rules
1952 which shall govern the trial of an
election petitions and not the provisions of
650 INDIAN LAW REPORTS ALLAHABAD SERIES
Order 5 Rule 20 CPC for the purpose of
substituted
service.
The
order
dated
13.07.2022, for convenience, is reproduced
below:

"I.A. Application No. 02 of 2022

Heard.

The petitioner who appears in person
submits that in pursuance to the order
dated 05.07.2022 he could not file the
affidavit. He prays for some further time
for filing the said affidavit.

The petitioner submits that he has filed
an application under Section 87 of the
Representation
of
People
Act,
1951
(hereinafter referred to as "Act, 1951")
praying that the order of the Registrar for
publication in the newspaper not being in
accordance with Code of Civil Procedure
(hereinafter referred to as "CPC") may be
waived and procedure & practices as
provided in the CPC may be followed and
the summons be served to the defendant as
provided in Order 5 Rule 20 of CPC
denoting "substituted service" inter alia.

This Court is of the view that once
specific rules have been framed under
Chapter XV (A) of the Allahabad High
Court Rules, 1952 (hereinafter referred to
as "Rules,1952") and Rule 1 categorically
provides that the provisions of said chapter
shall govern the trial of election petitions
under the Act, 1951 and further Rule 6
provides that the notice of election petition
shall be simultaneously published in a
newspaper selected by the Registrar and
that notices, process fee, charges and a
particular sum as an initial deposit has to
be supplied by the petitioner within seven
days of the order directing notice to issue
and that cost of publication in newspaper
exceeding Rs. 50, the Registrar shall call
upon the petitioner to deposit the excess
amount within the time fixed, as such it is
the provisions of Chapter XV (A) of the
Rules, 1952 which would be applicable for
the purpose of publication of notice in a
newspaper.

So far as Rule 12 of Chapter XV (A) of
the Rules, 1952 are concerned whereby the
Court's power to give directions in matters
of practice and procedure has been
prescribed, again, suffice to say that once
Rule 6 particularly deals with a particular
provision pertaining to publication of
notice merely because Rule 12 gives the
power to give direction in matter of
practice and procedure would not prevail
upon this Court to act otherwise than in
accordance with Rule 6 of Chapter XV (A)
of the Rules, 1952.

So far as the prayer in the application
filed by the petitioner to follow the practice
as provided in Order 5 Rule 20 of CPC is
concerned, suffice it to say that Order 5
Rule 20 of CPC would pertain to power of
the "Court" and obviously the word
"Court" as used in the aforesaid provision
would not include the High Court.
Accordingly, the application is rejected.

However, in pursuance to the order
dated 05.07.2022, the petitioner may file an
affidavit within two weeks.

Order on memo of petition

List this case on 28.07.2022 at 02:15
P.M. "

7. Thereafter the petitioner filed an
application duly supported by an affidavit
whereby he brought on record the rates
indicated by the ''Dainik Jagran', the
newspaper publication, as available on the
website
towards
classified
rates.
Considering the same the Court had passed
an order on 28.07.2022. For the sake of
convenience, the order dated 28.07.2022 is
reproduced below:

"Heard Sri Sheshmani Nath Tripathi,
the petitioner, who appears in person.
12 All. Sheshmani Nath Tripathi(S.N. Tripathi in Short) Vs. Sri Dinesh Rawat
651

This
Court
vide
order
dated
26.04.2022
had
issued
notice
to
respondents. As per office report dated
27.06.2022 the petitioner has not deposited
the cost of publication of notice in the
newspaper.

When the case was listed on 05.07.2022,
the petitioner contended that the amount as is
being required by the office of this Court to
be deposited is contrary to the amount as
reflected on the official website of the
newspaper
namely
'Dainik
Jagran'
Barabanki Edition and hence the amount has
not been deposited. He was accordingly
granted time to file an affidavit in this regard
bringing on record the rates which are
available on the official website of the said
newspaper and in pursuance thereof the
petitioner has invited the attention of this
Court towards the classified rates and
schemes 2020-21 of Dainik Jagran as
available on the website which has been
brought on record as Annexure-1 through the
application duly supported with an affidavit.
Placing reliance on the same, it is contended
that the rates as have been indicated by the
office of this Court are much higher than
those indicated on the website.

Considering the aforesaid as well as the
Rules framed under Chapter XV-A of the
Allahabad High Court, 1952, which relate to
the trial of the election petitions, let the office
of this Court submit its report in this regard
within ten days considering the rates as have
been indicated by the petitioner as available
on the official website of the newspaper
'Dainik Jagran'.

List this case on 24.08.2022 at 02.15
PM."

8. In pursuance to the order dated
28.07.2022 the office had sent a letter to the
Editor / Manager Advertisement, of the
newspaper concerned to provide a report as to
why the rates given for publication to the
office of the High Court were higher than the
classified rates available on the official
websites.

9. When the case was taken up on
24.08.2022, the Court noticed that despite a
letter having been sent to the newspaper
concerned no reply has been received and
hence the Court required a reminder to be
sent to the newspaper concerned.

10. When the case was listed on
19.09.2022, the Court perused the office
report dated 19.09.2022 from which it
emerged that despite a reminder having been
sent no report regarding rates of publication
has been received from the newspaper
concerned and thus required a final reminder
to be sent to the newspaper concerned. The
order dated 19.09.2022 is reproduced below:

"Heard the petitioner who appears in
person.

From the order dated 24.8.2022 of this
Court, it is apparent that this Court required
a reminder to be sent to the Newspaper
concerned in pursuance to the earlier order
of this Court dated 28.7.2022. The matter
pertains to the amount to be deposited for the
purpose
of
publication
of
notice
in
Newspapers in terms of rules given in
Chapter XV-A (6) (b) of Allahabad High
Court Rules, 1952. As per Office report dated
19.9.2022, despite the reminder having been
sent, no report regarding rates of publication
has been received from the Newspaper
Dainik Jagran.

The petitioner who appears in person,
has placed reliance on the Rule 12 of
Chapter XV-A of the Allahabad High Court
Rules, 1952 to contend that this Court may
pass appropriate orders regarding service
of notice by publication.

The Court is of the view that once the
Rule 6 of Chapter XV-A of the Rules, 1952
652 INDIAN LAW REPORTS ALLAHABAD SERIES
provides for notice of the election petition
to be also published in a newspaper as
selected by the Registrar and the Registrar
of this Court had required the petitioner to
deposit
required
publication
charges
according to Rule 5 and 6 of Chapter XV-A
of the Rules, 1952 which admittedly have
not been deposited by the petitioner on the
ground that lower rates are indicated on
the web-site of the concerned newspaper, as
such, it would be in the fitness of things
that a last reminder to be sent to the
newspaper
concerned
namely,
Dainik
Jagran regarding rates of publication. The
Registrar may also take notice of the fact
that despite notice having been sent, the
concerned has still not responded.

The petitioner who appears in person,
has prayed that the matter may come up
after three or four days and not more than
a week's time may be granted for the
purpose of taking reply.

However, the Court is of the view that
once there are already 120 cases listed in
the Additional Cause List apart from 22
fresh cases, it will not be possible for this
Court to accommodate the petitioner for
listing the case at an early date.

List this case on 18.10.2022."

11. When the case was listed on
02.11.2022 the petitioner invited the
attention of this Court towards the
aforesaid supplementary application filed
under Sections 86(7) and 87 of the Act
1951 for the prayers as have already been
quoted above.

12. The Court has gone through the
record including the letter dated 19.09.2022
sent by the newspaper concerned wherein it
has been indicated that the publication of
notice of advertisements like notice of
Election Petition is not published in
classified category of newspaper. It has also
been indicated that the publication was
never asked to publish the advertisement in
the classified category and that the rates
provided by the newspaper publication
were provided as per set norms.

13. From perusal of the said letter
alongwith office report it emerges that the
amount, as was required by the office of
this Court to be deposited by the petitioner
for publication in the newspaper, was the
rate given by the said publication for the
purpose of publication of the notice of
election petition and not for classified
advertisement. Considering the report and
the letter of the newspaper at the very
outset the petitioner was asked as to
whether he was willing to deposit the
amount, as was required to be deposited by
the office of this Court, to which he stated
that he wants the application with the
aforesaid prayers to be decided.

14. Accordingly, the Court proceeds
to decide the aforesaid application.

15. The perusal of the aforesaid
application alongwith the prayers as set
forth in the said application would indicate
that the petitioner wants correction and
rectification in the orders of this Court
dated 13.07.2022 and 19.09.2022 by which
this Court was of the view that as the High
Court has got the rules governing the filing
of election petition under the Act 1951 as
such the provisions of CPC for substituted
service shall not be applicable and further
vide the order dated 15.07.2022 this Court
had not acceded for listing of this case after
three or four days on account of having a
heavy board.

16. In this regard the petitioner has
placed reliance over Section 80A and
Section 87 of the Act 1951. The petitioner
12 All. Sheshmani Nath Tripathi(S.N. Tripathi in Short) Vs. Sri Dinesh Rawat
653
contends that Section 80A of the Act 1951
provides that the court having jurisdiction
to try an election petition shall be this
Court. Placing reliance on Section 87 of the
Act 1951 it is argued that the procedure
before the High court would be that every
election petition has to be tried by the High
Court as nearly as may be in accordance
with the procedure applicable under the
CPC 1908 to the trial of a suit.

17. Placing strong reliance on Section
87 of the Act 1951 the argument of the
petitioner is that once the Act 1951 itself
provides that the procedure to be followed by
the High Court for the purpose of trial of an
election petition is the procedure applicable
under the C.P.C. as such the provisions of
Order 5 Rule 20 CPC for the purpose of
substituted service would be only applicable
and not the procedure prescribed under
Chapter XV-A of the Rules 1952 and
consequently this Court had committed an
error in its order dated 13.07.2022 in not
following the provisions of Order 5 rule 20
CPC for the purpose of substituted service
and in adhering to the provisions of Chapter
XV A of the Rules 1952 and thus it is prayed
that the order dated 13.07.2022 be corrected
and rectified.

18. In this regard, the petitioner has
placed reliance on the judgement of
Hon'ble the Apex Court in the case of
Kailash vs Nanhku and others reported in
2005 (4) SCC 480 to contend that the Apex
court was of the view that in case of
conflict under the provisions of the Act
1951 with the High Court Rules, it is the
provisions of the Act 1951 which would
prevail over the provisions contained in the
High Court Rules.

19. So far as the order dated
19.09.2022 passed by this Court is
concerned whereby the Court had not fixed
an early date within three to four days, as
had been prayed for by the petitioner, on
the ground of having a heavy board,
reliance has been placed on a judgement of
Hon'ble the Apex Court in the case of M. S.
Gill vs Chief Election Commissioner
reported in 1978 (1) SCC 405 to contend
that an election petition should be decided
expeditiously and argues that this Court
should give precedence to the special law
action i.e. election petition and not the
common law lis between the private parties
and hence it is prayed that the order dated
19.09.2022 whereby an early date had not
been given be also corrected.

20. Heard the petitioner at length and
perused the averments made in the
application and the judgements of Hon'ble
the Apex Court in the case of Kailash
(supra) as well as M. S. Gill (supra).

21. The application has been filed
with prayers as have already been indicated
above. From a perusal of the said prayers it
emerges that the petitioner wants the errors
indicated by him in the orders dated
13.07.2022 and 19.09.2022 passed by this
Court to be corrected. The said errors are
said to be (a) refusal by the Court to fix an
early date of 3 to 4 days, as had been
prayed for by the petitioner and (b) the
Court not acceding in following the
procedures prescribed in CPC for service of
notice and adhering to the provisions of the
Rules framed under Chapter XV-A of the
Rules 1952 relating to trial of election
petition.

22. So far as the question (a) is
concerned reliance has been placed on the
judgement of Hon'ble the Apex Court in the
case of M. S. Gill (supra) to contend that
an election petition should be decided
654 INDIAN LAW REPORTS ALLAHABAD SERIES
expeditiously. A perusal of the order sheet
would indicate that an endeavor has been
made by this Court to expedite the matter,
as would be apparent from perusal of
orders of various dates that have been
passed in the petition. It is on account of
non service of notice on the respondent and
the office of this Court having required the
petitioner to deposit a certain amount for
publication of notice that on various dates
time has been sought for by the petitioner
objecting to deposit of the charges and also
objecting to the same on the ground that
lower rates are indicated on the official
website of the newspaper. The Court
required the office to obtain a report from
the newspaper concerned regarding the
disparity in the rates and the office of
newspaper publication finally responded
after two notices had been sent, indicating
the difference in the rates pertaining to
publication of classified and a notice of
election petition. Thus, it is apparent that
various dates in the petition have been
fixed in order to resolve the issue regarding
publication in newspaper of the notice and
thus the insistence of the petitioner to fix a
date of only 3 to 4 days, without
publication of the notice in the daily
newspaper, as provided under the Rules
1952, cannot be countenanced in any
manner once the notice itself has not been
published, as per the rules.

23. Consequently, it would not be
possible for the Court to fix an early date
simply on the insistence of the petitioner
rather it is apparent that it is on account of
non compliance of the provisions of the
Rules 1952 of publication of notice in the
newspaper that the present situation has
arisen. There cannot be any dispute to the
proposition of law laid down by Hon'ble
the Apex Court in the case of M. S. Gill
(supra) of election petition to be decided
expeditiously. Thus, it is apparent that there
is no error in the order dated 14.09.2022
whereby the Court did not find it possible
to accommodate the petitioner for listing of
the case at an early date.

24. So far as the question (b) is
concerned, for deciding the said question,
the Court would have to consider Section
80A and 87 of the Act 1951.

25. Section 80A of the Act 1951 reads
as under:

"80-A. High Court to try election
petitions. -

(1) The Court having jurisdiction to
try an election petition shall be the High
Court.

(2) Such jurisdiction shall be exercised
ordinarily by a single Judge of the High
Court and the Chief Justice, shall, from
time to time, assign one or more Judges for
that purpose:

Provided that where the High Court
consists only of one Judge, he shall try all
election petitions presented to that Court.

(3) The High Court in its discretion
may, in the interests of justice or
convenience, try an election petition,
wholly or partly, at a place other than the
place of seat of the High Court."

26. Section 87 of the Act 1951 reads
as under:

"87. Procedure before the High
Court. -

(1) Subject to the provisions of this Act
and of any rules made thereunder, every
election petition shall be tried by the High
Court, as nearly as may be, in accordance
with the procedure applicable under the
12 All. Sheshmani Nath Tripathi(S.N. Tripathi in Short) Vs. Sri Dinesh Rawat
655
Code of Civil Procedure, 1908 (5 of 1908)
to the trial of suits:

Provided that the High Court shall
have the discretion to refuse, for reasons to
be recorded in writing, to examine any
witness or witnesses if it is of the opinion
that the evidence of such witness or
witnesses is not material for the decision of
petition or that the party tendering such
witness or witnesses is doing so on
frivolous grounds or with a view to delay
the proceedings.

(2) The provisions of the Indian
Evidence Act, 1872 (1 of 1872), shall,
subject to the provisions of this Act, be
deemed to apply in all respects to the trial
of an election petition."

27. From a perusal of Section 80A of
the Act 1951 it emerges that it is the High
Court which is to try the election petition.

28. So far as Section 87 of the Act,
1951 is concerned, the said provision
provides that every election petition shall
be tried by the High Court as nearly as may
be, in accordance with the procedure
applicable under CPC. The said Section
further however provides that the High
Court shall have the discretion to refuse to
examine
any
witness
and
that
the
provisions of the Indian Evidence Act,
1872 shall, subject to the provisions of the
Act 1951, be deemed to apply in respect of
trial of an election petition. However, as
this Court is only required to decide the
applicability of the provisions of CPC to
the
election
petition
as
such
other
provisions of the said section are not
relevant to be considered by this Court at
this stage.

29. Section 87 of the Act 1951 came
up for consideration before the Apex Court
in the case of Kailash (supra). The Apex
Court while considering the aforesaid
provision, has summed up the issues as
under:

"(i) The trial of an election petition
commences from the date of the receipt of
the election petition by the Court and
continues till the date of its decision. The
filing of pleadings is one stage in the trial
of an election petition. The power vesting
in the High Court to adjourn the trial from
time to time (as far as practicable and
without sacrificing the expediency and
interests of justice) includes power to
adjourn the hearing in an election petition
affording opportunity to the defendant to
file written statement. The availability of
such power in the High Court is spelled out
by the provisions of the Representation of
the People Act, 1951 itself and Rules made
for purposes of that Act and a resort to the
provisions of the CPC is not called for.

(ii) On the language of Section 87(1)
of the Act, it is clear that the applicability
of the procedure provided for the trial of
suits to the trial of election petitions is not
attracted
with
all
its
rigidity
and
technicality.
The
rules
of
procedure
contained in the CPC apply to the trial of
election petitions under the Act with
flexibility and only as guidelines.

(iii) In case of conflict between the
provisions of the Representation of the
People Act, 1951 and the Rules framed
thereunder or the Rules framed by the
High Court in exercise of the power
conferred
by
Article
225
of
the
Constitution on the one hand, and the
Rules of Procedure contained in the CPC
on the other hand, the former shall prevail
over the latter.

(iv) The purpose of providing the time
schedule for filing the written statement
under Order VIII, Rule 1 of CPC is to
expedite and not to scuttle the hearing. The
656 INDIAN LAW REPORTS ALLAHABAD SERIES
provision spells out a disability on the
defendant. It does not impose an embargo
on the power of the Court to extend the
time. Though, the language of the proviso
to Rule 1 of Order VIII of the CPC is
couched in negative form, it does not
specify any penal consequences flowing
from the non- compliance. The provision
being in the domain of the Procedural Law,
it has to be held directory and not
mandatory. The power of the Court to
extend time for filing the written statement
beyond the time schedule provided by
Order VIII, Rule 1 of the CPC is not
completely taken away.

(v) Though Order VIII, Rule 1 of the
CPC is a part of Procedural Law and
hence directory, keeping in view the need
for expeditious trial of civil causes which
persuaded the 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 asking, more so when the
period of 90 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 was needed to
be given for the 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."

(emphasis by the court)

30. So far as the present controversy
is concerned issue (iii) of the judgement of
the Apex Court in the case of Kailash
(supra) would be relevant wherein the
Apex
Court
after
considering
the
provisions of the Act 1951 and the CPC
has held that in case of conflict between
the provisions of the Act 1951 and the
Rules framed therein or the rules framed
by the High Court in exercise of powers
conferred
by
Article
225
of
the
Constitution on the one hand and the rules
of procedure contained in CPC on the
other hand the former shall prevail over
the latter.

31. Thus it is apparent that the Apex
Court has set at rest the controversy in as
much it has been held that in case of
conflict between the rules framed by the
High Court and the rules of procedure
contained in CPC, it is the rules framed by
the High Court which shall prevail. In the
instant case, as already indicated in the
order dated 13.07.2022, the Court had
considered the rules framed under Chapter
XV A of the Rules 1952 vis a vis Order 5
Rule 20 of CPC pertaining to service of
notice and the Court was of the view that
it is Rule 6 of the Chapter XV A of Rules
1952
which
shall
prevail.
Thus
considering the law laid down by the Apex
Court in the case of Kailash (supra), this
Court does not find any error in the order
dated 13.07.2022.

32. Keeping in view the aforesaid
discussion, the application is rejected.

Order on the main petition

1. The petitioner is granted two weeks
time to deposit the cost of publication as
directed by the office of this Court.

2. In case the cost is deposited, the
office shall proceed.

3. List this case on the date to be
indicated in the notice by the office.
12 All. Ravindra Vs. State of U.P. & Ors.
657
----------
(2022) 12 ILRA 657
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.11.2022

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Application U/S 482 No. 25765 of 2022

Ravindra ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri C.D. Mishra

Counsel for the Opposite Parties:
G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860-Sections 147, 148, 149,
452, 307, 302, & 506-In the instant case
charges were framed against the accused
persons on 23.12.2011 and since then the
matter is being fixed for prosecution
evidence-Session trial is more than 10
years old and the prosecution evidence is
still not completed despite efforts of the
Presiding Officer-However court cannot
shut its eyes from so many obstacles into
the proceedings of any trial-It is the duty
of
the
court
to
see
whether
the
prolongation was on account of any
delaying tactics adopted by the accused
and
other
relevant
aspects
which
contributed to the delay-Therefore, this
Court strictly directs the trial court to
make all possible endeavor to conclude
the trial of the case within six months.
(Para 1 to 9)

The application is disposed of. (E-6)

List of Cases cited:
St. thru C.B.I Vs Dr. Narayan Woman Nerukar
(2002) AIR SC 2977
(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Heard learned counsel for the
applicant and learned A.G.A. for the State.

2. This application under Section 482
Cr.P.C. has been filed seeking a suitable
direction to the learned Additional District
Judge-1, District- Muzaffar Nagar to decide
the Sessions Trial No. 924 of 2011 arising
out of Case Crime No. 20 of 2011 under
Sections 147, 148, 149, 452, 307, 302, 506
I.P.C.,
P.S.-
Kakrauli,
District-
Muzaffarnagar as expeditiously as possible
within stipulated time.

3. The prosecution case as culled
out from the FIR is that on 3.2.2011 at
about 3.00 pm an altercation took place
between the brother of complainant
Shokendra
and
his
villagers
Anuj,
Rajendra
and
his
family
members.
Thereafter at about 6.00 pm., the accused
persons namely Rajendra, Ramchandra,
Bhopal, Anuj, Rajeev and Amit with
intention to kill, attacked with firearms
on the brothers of the applicant namely
Shokendra and Subhash as well as his
nephews namely Sachin and Jagpal, in
which the brother of the applicant
Shokendra died on the way of hospital,
while others sustained grievous injuries.
With regard to the aforesaid incident, the
applicant immediately on the same day at
about 22.50 hours lodged an FIR against
the aforesaid accused persons. The police
after investigation submitted the charge
sheet against the aforesaid six accused.
The learned Chief Judicial Magistrate,
District Muzaffarnagar vide his order
dated 20.04.2011 took cognizance on the
above
mentioned
charge
sheet
and
summoned
the
accused
persons
registering case no. 2224/9 of 2011.