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2004 DIGILAW 619 (KAR)

C. S. RAVISHANKAR v. SHOBHA RANI

2004-11-05

S.ABDUL NAZEER

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S. ABDUL NAZEER, J. ( 1 ) THOUGH this matter is posted for orders, by the consent of learned counsels for the parties, it is taken up for final hearing. ( 2 ) THE petitioner has called in question the order passed by the Civil judge (Senior Division), Kolar (for short, 'trial Court'), dated 21-6-2004, whereby the Trial Court has refused to take on record the written statement filed by the petitioner on the ground that it was filed beyond ninety days from the date of service of summons. ( 3 ) THE respondent herein instituted a suit as an indigent person under Order 33, Rule 1 of the Code of Civil Procedure ("cpc" for short ). By the order dated 18-3-2004 the Trial Court allowed him to sue as an indigent person. It is stated that after allowing the application to sue as an indigent person, the matter was posted on 12-4-2004 for filing the written statement. On that day, since the Presiding Officer was on leave, the matter was again posted on 21-6-2004. In the meantime, on 27-5-2004 the defendant filed the written statement in the office. However, the Trial Court by its order dated 21-6-2004 has refused to accept the written statement on the ground that it was filed beyond 90 days as provided under Order 8, Rule 1 of the CPC. ( 4 ) I have heard the learned Counsels for the parties. ( 5 ) IT is not in dispute that the respondent herein has filed the suit for recovery of certain amount alleged to be due from the petitioner as an indigent person. The Trial Court by its order dated 18-3-2004 allowed the application and directed registration of the suit without insisting payment of Court fee. The written statement was filed on 27-5-2004. The question for consideration is from what stage of the proceedings the period of ninety days should be computed for filing the written statement in a suit instituted by an indigent person. ( 6 ) RULE 1 of Order 33 of the Code of Civil Procedure provides for institution of suit by indigent persons. Rule 1-A of Order 33 provides for an inquiry into the means of the indigent person. ( 6 ) RULE 1 of Order 33 of the Code of Civil Procedure provides for institution of suit by indigent persons. Rule 1-A of Order 33 provides for an inquiry into the means of the indigent person. Rule 8 of Order 33 states that where the application to sue1 as an indigent person is granted, it shall be numbered and registered, and shall be deemed as the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any Court fee. ( 7 ) BY Act 22 of 2002, Rule 1 of Order 5 and Rule 1 of Order 8 of the code of Civil Procedure were amended. The effect of the amendment is that the defendants in a suit are required to file the written statement within thirty days from the date of service of summons on them. Proviso to the said rules states that where the defendant fails to file the written statement within the said period of 30 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 90 days from the date of service of summons. ( 8 ) FORM 1 in Appendix B is the prescribed form for issuance of summons as provided in Rule 1 of Order 5 of the CPC. Form 4 of appendix H is the general form for issue of a show-cause notice. In the present case petitioner was issued a show-cause notice in Form 4 of appendix H. Suit summons was not issued in Form 1 of Appendix B. ( 9 ) AS noticed above, when the application filed to sue as an indigent person is allowed, the same is deemed as a plaint in the suit as per Rule 8 of Order 33 of the CPC. In my view, if the defendant files written statement within 30 days from the date of registration of the application as a suit, he has satisfied the statutory requirement of filing of written statement in accordance with Rule 1 of Order 8 of the CPC. In my view, if the defendant files written statement within 30 days from the date of registration of the application as a suit, he has satisfied the statutory requirement of filing of written statement in accordance with Rule 1 of Order 8 of the CPC. The Court may in its discretion allow the defendant to file written statement beyond 30 days from the registration of the plaint as per Rule 8 of Order 33, but within 60 days from thereafter. The petitioner has admittedly filed written statement within 90 days from the date of registration of the miscellaneous petition as a suit. The Trial Court has committed an error while rejecting the application filed by the petitioner while holding that he has not filed the written statement within 90 days from the date of issue of suit summons. As stated above, suit summons in Form 1 of appendix B was not served on the petitioner. In my view, the date of allowing of the application as per Rule 8 of Order 33 should be treated as a date of service of summons as per Rule 1 of Order 5 of the CPC. This is because first proviso to Rule 1 of Order 5 states that no summons need be issued when a defendant appears at the presentation of the plaint. ( 10 ) THE petitioner has filed the written statement beyond thirty days from the date of allowing the application filed by the respondent to sue as an indigent person. However, written statement was filed within ninety days from the said date. He has filed an application in this Court explaining the reasons for the said delay. I am satisfied that the petitioner has assigned sufficient reasons for the delay in filing the written statement. ( 11 ) IN the result, the writ petition succeeds and it is accordingly allowed. The order of the Trial Court dated 21-6-2004 passed in O. S. No. 66 of 2004 is quashed. I direct the Trial Court to accept the written statement and proceed with the matter in accordance with law. --- *** --- .