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2004 DIGILAW 299 (GAU)

Manager, Kaliabor Tea Estate v. Chakra Hazarika

2004-04-29

I.A.ANSARI

body2004
ORDER I.A. Ansari, J. 1. The order under challenge in the present revision was passed, on 23.12.2003, by the learned Civil Judge (Senior Division) Nagaon, in TS No. 11/2002, refusing to accept the written statement filed by the Petitioner-Defendant on the ground that the same had not been filed within a period of 90 days from the date of service of the summons. 2. Heard Mr. A.B. Choudhury, learned Counsel, appearing on behalf of the Petitioner, and Mr. S.P. Roy, learned Counsel for opposite parties. 3. The present revision, basically, invites this Court to adjudge if the view adopted in Balram Prasad Gupta v. Md. Isa reported in 2003 (3) GLT 30, lays down the correct position of law, wherein it has been held that according to Order 8 Rule 1 of the Code of Civil Procedure Amendment Act of 2002, which has come into force with effect from 1st July, 2002, a written statement cannot be accepted by the Court beyond the period of 90 days from the date of service of the summons. 4. For the sake brevity Order 8 Rule 1 is quoted hereinbelow: 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. 5. A bare reading of the above proviso shows that as a rule, written statement must be filed within 30 days from the date of service of summons on the Defendant, who offers to submit the written statement. However, the trial Court has the power to grant, in its discretion, further time for filing of written statement, but the Court has no power to extend the date of filing of the written statement beyond a total period of 90 days from the date of service of summons. However, the trial Court has the power to grant, in its discretion, further time for filing of written statement, but the Court has no power to extend the date of filing of the written statement beyond a total period of 90 days from the date of service of summons. In the case of Baliram Prasad Gupta (supra), the Court, while taking the view that no extension of time, beyond the period of 90 days from the date of service of summons on the Defendant, can be granted by the trial Court, observed and held as follows: 6. There is a legal maxim 'Expressio Unius est exclusio alterius' (if a statute provides for a 'thing to be done in a particular manner, then it has to be done in that manner and no other manner and following of other course is not desirable). The above maxim has been followed by the Courts by providing that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all. In the recent case of Dhananjay Reddy v. State of Karnataka (2001) 4 SCC 9 , the Apex Court followed the above rule adopted in Taylor v. Taylor (1876) 1 Ch.D. 426 and Nazir Ahmed v. King Emperor AIR 1936 PC 253. We, therefore, hold that the written statement is required to be filed within the time frame provided under Order 8 Rule 1 Code of Civil Procedure and in case of Defendant's failure to do so, the Court shall have no discussion in the matter. 6. I see absolutely no reason to differ from what has been observed and held by the Court in Baliram Prasad Gupta (supra). 7. Mr. AB Choudhury, learned Counsel for the Petitioner, has referred to the case of Kajaria Iron Castings Ltd. v. Aswini Kumar More reported in : (2002) 10 SCC 292 , to show that in the interest of justice, further time may be allowed by the Court for filing of written statement. I have carefully read the decision rendered in Kajaria ton Castings Ltd. (supra). This decision has been rendered on the basis of the Code of Civil Procedure as it stood before its amendment in the year 2002. I have carefully read the decision rendered in Kajaria ton Castings Ltd. (supra). This decision has been rendered on the basis of the Code of Civil Procedure as it stood before its amendment in the year 2002. Though the decision in Kajaria Iron Castings Ltd. (supra) has been reported in 2002, the decision was actually rendered as far back as on 30.10.2000, whereas the Code of Civil Procedure Amendment Act came into force on 1.7.2002. 8. In support of his submission that the Court has, indeed, the power to permit filing of written statement belatedly, Mr. Choudhury has also placed reliance on Ramesh Chand Ardawatiya v. Anil Panjwani reported in (2003) 7 SCC 350 . A careful reading of the decision in Ramesh Chand Ardawatiya (supra) shows that the decision was rendered by the Apex Court on the basis of the Code of Civil Procedure as it stood before the Amendment Act of 2002. This becomes more than abundantly clear from the observations made therein, which read as follows: 24. Order 8 Code of Civil Procedure deals with "written statement, set-off and counterclaim". We would like to state, by way of clarification that the provisions of Code of Civil Procedure which are being considered herein are as amended by Act 104 of 1976 only (excluding from consideration the amendments incorporated by Act 46 of 1999 with effect from 1.7.2002).... 9. What crystallizes from the above discussion is that the decision in Kajaria Iron Castings Ltd. (supra) and Ramesh Chand Ardawatiya (supra) do not lay down that even after the amendment Act of 2002, the trial Court has the power to extend the period of filing of written statement beyond the period of 90 days. 10. It has been pointed out by Mr. S.P. Roy that the TS No. 11/02 aforementioned was instituted before the Code of Civil Procedure Amendment Act of 2002 came into force and, hence, Order 8 Rule1, as the same stood before the amendment Act of 2002, shall be applied and if it is so applied, there was no limitation on the part of the Court to extend time beyond the period of 90 days from the date of service of summons. 11. 11. While dealing with the above aspect of the matter, it needs to be noted that in Shiv Shakti Co-op Housing Society v. Swaraj Developers reported in (2003) 6 SCC 659 , the Apex Court has laid down, in no uncertain words, that pending proceedings initiated under the Old Code of Civil Procedure will also be governed by the provisions of the amended Code. The Amendment Act of 2002 has saved certain provisions of Old Code for application to the proceedings initiated under the Old Code, but so far as the provisions of Order 8 Rule 1 are concerned, Section15(iv) of the Amendment Act saves only those written statements, which already stood filed beyond the period of 90 days under the Old Code. 12. What, thus, logically follows is that if a written statement is not filed within a period of 90 days from the day of service of the summons on the Defendant, the trial Court has no power to extend any further the period for filing of the written statement by the Defendant. 13. In view of the fact that by the impugned order, the learned trial Court has refused to accept the written statement on the ground that the same had not been filed within 90 days from the date of service of summons on the Defendant, such an order is wholly in conformity with the provisions of Order 8 Rule 1 and cannot, therefore, be interfered with in revision. 14. In the result and for the foregoing reasons, this revision is held as not maintainable and the same is, therefore, dismissed. No order as to costs. Petition dismissed.