# Somaroo v. Smt. Prakriti Acharya and others

- **Citation:** (2009) 1 ILRA 151
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-11-25
- **Case number:** Civil Misc. Writ Petition No. 60517 of 2008
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/somaroo-v-smt-prakriti-acharya-and-others-41302
- **Pages:** 2

## Text

1 All] Somaroo V. Smt. Prakriti Acharya and others
151
the opposite party, has not been fully
allowed as yet and is still subject to
certain conditions. Consequently, the
issue with regard to appointment of a
receiver, has not been finally decided and
does not come under the category of the
explanation provided under Section 115
of the C.P.C. The impugned order is not a
case which has been decided finally nor
does the impugned order decides the issue
finally. Final order would be passed when
a receiver is appointed, against which, the
petitioner has a remedy of filing an appeal
under Order 43 Rule 1(s) of the C.P.C.

In view of the aforesaid, this Court is
of the opinion that the court below has
rightly rejected the revision, as not
maintainable. The writ petition fails and is
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.11.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 60517 of 2008

Somaroo

...Petitioner

Versus
Smt Prakriti Acharya and others

 ...Respondents

Counsel for the Petitioner:
Sri Sharad Chandra Upadhyay

Counsel for the Respondents:

Code of Civil Procedure-Order VIII Rule
1-written
statement
filed
after
the
period-prescribed objection about taking
on record-held-even after amendment
this provision not mandatory-secondly
when the exparte-Decree set a side at
once written statement filed without any
further delay-can not be discarded Court
below rightly accepted the same.

Held: Para 5 & 6

In the present case, the order to proceed
ex parte against the defendants was
allowed
on
payment
of
cost,
and
pursuant thereto, the written statement
was filed immediately. Once ex parte
proceedings
are
recalled,
the
time
elapsed during the interim period was
liable to be ignored, for which, no
explanation or reason was required to be
given. The trial court passed an order on
17.4. 2007 recalling the ex parte decree
against the defendants, and on the same
day, the written statement was filed
without any further delay.

Consequently, this Court is of the opinion
that the order of the trial court keeping
the written statement on the record,
does not suffer from any error of law.
Case law discussed:
AIR 2005 SC 3353, (2005) 4 SCC 480, (2005)
6 SCC 705, AIR 2006 SC 396

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

1. The petitioner filed a suit for
injunction. It transpires that the trial
court proceeded ex parte against the
defendants,
but
subsequently,
an
application for recall of the order was
filed by one of the defendants, which
was
allowed
by
an
order
dated
17.11.2007
on
payment
of
cost,
pursuant to which, the written statement
was filed and it was taken on record.
The petitioner filed an application
before the trial court praying that the
written statement should not be taken on
record and should be rejected in view of
the fact that the written statement was
filed
after
the
stipulated
period,
provided under Order VIII, Rule 1 of
the Code of Civil Procedure. The said
application was rejected by the trial
152 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
court, against which, a revision was
filed, which was also rejected. The
petitioner, being aggrieved, has filed the
present writ petition.

2. The learned counsel for the
petitioner submitted that in view of
Section 15 (b) (iv) of the Code of Civil
Procedure (Amendment Act, 2002), the
amended provision of the Order VIII, as
made by the Amendment Act, would be
applicable to the proceedings, which
was pending prior to the enforcement of
the Amendment Act. Consequently, no
written statement could be filed after the
expiry of the stipulated period as
provided under Order VIII, Rule 1. The
learned
counsel,
consequently,
submitted that the trial court committed
an error in keeping the written statement
on record.

3. In my opinion, the submission
of the learned counsel for the petitioner
is bereft of merit.

4. The Supreme Court in a large
number of decisions in Salem Advocate
Bar
Association,
Tamilnadu
Vs.
Union of India, AIR 2005 SC 3353;
Kailash Vs. Nanhku &. Ors. (2005) 4
SCC 480; Rani Kusum (Smt) Vs.
Kanchan Devi (Smt) &. Ors., (2005) 6
SCC 705; and Shaikh Salim Haji
Abdul Khayum sab Vs. Kumar &.
Ors. AIR 2006 SC 396 has held that
even after the amendment of the
provision of Order VIII, Rule 1,
pursuant to the Amendment Act of
2002, the provision of the Order VIII,
Rule 1 is still directory in nature and is
not mandatory and that time could be
extended on sufficient cause being
shown.

5. In the present case, the order to
proceed ex parte against the defendants
was allowed on payment of cost, and
pursuant thereto, the written statement
was filed immediately. Once ex parte
proceedings are recalled, the time
elapsed during the interim period was
liable to be ignored, for which, no
explanation or reason was required to be
given. The trial court passed an order on
17.4. 2007 recalling the ex parte decree
against the defendants, and on the same
day, the written statement was filed
without any further delay.

6. Consequently, this Court is of
the opinion that the order of the trial
court keeping the written statement on
the record, does not suffer from any
error of law.

7.

The
writ
petition
is
misconceived
and
is
dismissed
summarily.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2008

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No.60787 of 2008

United India Insurance Co. Ltd. ...Petitioner

Versus
Motor Accident Claim Tribunal, Bareilly
and others

 ...Respondents

Counsel for the Petitioner:
Sri S.N. Pandey
Sri Havaldar Verma

Counsel for the Respondents:
Sri Amaresh Sinha