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2003 DIGILAW 367 (KAR)

SAVITHA GUPTA v. NAGARATHA

2003-04-17

G.C.BHARUKA

body2003
G. C. BHARUKA, J. ( 1 ) THE defendant has preferred this revision petition against the order dated 26-2-2003 passed in O. S. 2053/2002. By the impugned order, the Court below has refused to entertain the written statement which was filed beyond the period prescribed under Order VIII Rule 1 of the Code of Civil Procedure, 1908. ( 2 ) THE suit is one for ejectment of the defendant from the suit schedule premises. It was filed on 1-4-2002. On 5-4-2002 summons were directed to be issued to the defendant through court and by RPAD returnable by 2-7-2002. The order dated 2-7-2002 of the Court below shows that the summons were served and the defendant appeared through an Advocate. Though under the amended Order VIII Rule 1 the defendant was required to file written statement within one month of service of summons, she failed to do so. She did not make any prayer even for extending the time which could have been upto 90 days under proviso to the said rule. The case was accordingly posted for evidence of the plaintiff. On 4-2-2003 the plaintiff filed an affidavited Examination-in-chief. The case was posted to 22-2-2003 for cross-examination of P. W. 1. Though P. W. 1 was present for cross-examination on that day, he was not examined. The case was again posted to 26-2-2003 on which date P. W. 1 appeared, but the counsel for the defendant remained absent. Later on in the day, the Advocate for defendant filed an I. A. I. under S. 151 with the Written statement and the documents of the defendant. The case was again posted to 26-2-2003 on which date P. W. 1 appeared, but the counsel for the defendant remained absent. Later on in the day, the Advocate for defendant filed an I. A. I. under S. 151 with the Written statement and the documents of the defendant. The Court below rejected the I. A. and refused to entertain the written statement on the ground that it was filed beyond the time prescribed under the provisions of the amended C. P. C. ( 3 ) ORDER VIII Rule 1 C. P. C. as amended by Act 46/1999 reads as under :"written Statement - The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. " ( 4 ) FROM the facts narrated above and the amended provisions of Order VII Rule 1, it is quite clear that the defendant loses the right to file Written statement if he fails to do so within the time prescribed. The Court has no power to extend such time even under S. 148 CPC beyond 30 days in which, after amendment, reads as under :"148 Enlargement of time - Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period not exceeding thirty days in total, even though the period originally fixed or granted may have expired. ( 5 ) LEARNED counsel appearing for the petitioner has submitted that the Court below ought to have permitted the filing of Written Statement by exercising its discretion under Order VIII Rule 9 CPC. ( 5 ) LEARNED counsel appearing for the petitioner has submitted that the Court below ought to have permitted the filing of Written Statement by exercising its discretion under Order VIII Rule 9 CPC. Order VIII Rule 9 reads as under -"subsequent Pleadings :- No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same. " ( 6 ) THE above rule is in two parts. The first part deals with presentation of additional pleadings by the parties with the leave of the Court. The second part empowers the Court to call for written statement or additional statement of his own from any of the parties, if the justice so demands. ( 7 ) RULE 9 of Order VIII CPC does not entitle the defendant to file written statement for the first time even with the leave of the Court. It is so because this rule merely deals with filing of pleadings subsequent to filing of written statement. Right of the defendant to file written statement is governed exclusively by Rule 1 and not Rule 9. The Patna High Court decision cited at the Bar relates to the period when Order 8 Rule 1 had conferred right on the defendant to file written statement at any time on or before first hearing or within such time as the court may permit. But, now this is not the situation. ( 8 ) FURTHER, it is well settled that if any particular case or topic falls within the ambit of express provisions of the statute, the inherent powers of a court must to that extent is abrogated by the legislature. The Courts cannot have recourse in such cases to the inherent powers. There are catena of binding decision to this effect. But I may quote only one. In the case of Nainsingh v. Koonwarjee AIR 1970 SC 997 the Supreme Court has held that. "under the inherent power of Courts recognised by S. 151, CPC, a Court has no power to do that which is prohibited by the Code. There are catena of binding decision to this effect. But I may quote only one. In the case of Nainsingh v. Koonwarjee AIR 1970 SC 997 the Supreme Court has held that. "under the inherent power of Courts recognised by S. 151, CPC, a Court has no power to do that which is prohibited by the Code. Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. " ( 9 ) COMING to the right of the defendant to file written statement under the amended Rule 1, the defendant's right to file written statement is lost if he fails to file the same within the period prescribed. The Court cannot accept the time barred written statement even by purported exercise of its inherent power under S. 151 CPC. Because any such exercise will be contrary to the Parliamentary mandate. S. 151 CPC does not clothe the Courts with any such unlimited or unrestricted powers. ( 10 ) LEARNED counsel appearing for the petitioner has placed reliance on certain judgments which had been rendered keeping in view the unamended provisions of Order VII Rule 1 r/w Order VIII Rule 9 CPC. Now with the change in the scheme of the procedural law, those decisions cannot be pressed into service. The learned counsel for the petitioner also relied on an unreported judgment of this Court in the case of Shri Prasana Parvathamba Vaidyanathe-shwara Trust v. M. S. Radhakrishna Dixit (CRP No. 363/2003, D/- 17-4-2003) reported in 2003 AIR-Kant HCR 1645. In my opinion, this is also of non avail to the petitioner in view of the statutory bar on the part of the defendant in filing the written statement beyond the prescribed time, which is mandatory in nature. In my opinion, this is also of non avail to the petitioner in view of the statutory bar on the part of the defendant in filing the written statement beyond the prescribed time, which is mandatory in nature. ( 11 ) THE consequence of not filing of the written statement within the time prescribed under Order VIII Rule 1 is provided under Order VIII Rule 10 CPC which reads as under"procedure when party fails to present written statement called for by the Court Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. " ( 12 ) ORDER VIII Rule 10 provides the consequence for non-compliance with order VIII Rule 1 CPC and therefore, it has to be held as mandatory. The constitutionality of the amended provisions of the CPC has been upheld by the Supreme Court in the case of Salem Advocate Bar Association v. Union of India AIR 2003 SC 189 . In paragraph 4 it has been held that -"in the petitions, the amendments, which were sought to be made, by the aforesaid amendment Acts, have been challenged, but we do not find than the said provisions are in any way ultra vires the Constitution. Neither Mr. Vaidyanathan nor any other learned counsel made any submissions to the effect that any of the amendments made were without legislative competence or violative of any of the provisions of the Constitution. We have also gone though the provisions by which amendments have been made and do not find any constitutional infirmity in the same. " ( 13 ) FOR the aforesaid reasons, I find no infirmity in the order passed by the Court below. Petition is accordingly dismissed. Petition dismissed. --- *** --- .