Ram Saran vs Smt. Khazani

Janardan Sahai, J.—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 VIII, 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 CPC Amendment Act 22 of 2001 had come into force with effect from 1st 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 written statement on the record, which application was rejected by the trial court on 11.9.2003. The suit was then decreed under Order VIII, Rule 10, CPC on 19.9.2003. The appeal against the decree filed by the appellant was dismissed.

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

Under the provisions of the CPC 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.

It was submitted by Sri Dhan Prakash, learned counsel for the appellant that by virtue of the provisions of Section 149 of the CPC 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 CPC were applicable and consequently the Court had discretion to extend the time for filing the written statement without limit and the provisions of Order VIII, Rule 1 CPC as amended by the CPC Act 22 of 2002 were not applicable. It is also submitted that the outer limit of 90 days fixed under the proviso to Order VIII, 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 Topline Shoes Ltd. Corporation Bank 2002 (3) AWC 2433 (SC) : AIR 2002 SC 248.

The consequence of applying Section 149, CPC 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 CPC had become applicable. Order V, Rule 1 of the CPC 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 CPC had come into force. The amended provisions were therefore applicable for Issuance of summons.

A Division Bench of the Karnataka High Court in A. Sathyapal and Others Vs. Smt. Yasmin Banu Ansari and Another, , has interpreted the provisions of Order VIII, Rules 1, 9 and 10 and Sections 157 and 148 CPC 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 is limited to the period provided Under the proviso. The decision of the Karnataka High Court has been followed by our Court in Nanku v. Kailash and Ors. 2004 (2) ARC 779. The decision relied upon by Sri Dhan Prakash in Topline Shoes v. 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 VIII, 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'' clrcumstances 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 VIII, Rule 10 was justified. The applicant has been granted more time than was required. There is no merit in this appeal. Dismissed.