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Himachal Pradesh High Court · body

2005 DIGILAW 30 (HP)

VIJAY SINGH v. AKSHAY DEOGAR

2005-03-01

M.R.VERMA

body2005
JUDGMENT M.R. Verma, J.—This application under Section 151 of the Code of Civil Procedure (hereinafter referred to as the "Code") has been preferred by the applicant-pro/orma defendant/ Director, Town and Country Planning Department (hereinafter referred to as the "Applicant") praying for extension of time for filing the written statement in the suit instituted by the non-applicant/ plaintiff. 2. It is averred in the application that the applicant was granted two weeks time for filing the written statement on 18.10.2004 and the matter remained under process, therefore, the written statement could not be filed within the aforesaid period which lapse on the part of the applicant is bona fide and not intentional. 3. The non-applicant/plaintiff though did not file any reply to the application but he did not concede the application. 4. I have heard the learned Counsel for the parties. 5. It is not in dispute that summons issued in the suit were served on the applicant on 16.6.2004. The summons so served contained a specific direction that the written statement was to be filed by the applicant within 30 days from the date of the receipt of the summons and the date for appearance was mentioned as 14th July, 2004. It is also not in dispute that on the date fixed for appearance, i.e. 14th July, 2004,the applicant did not put in appearance and was proceeded against ex-parte. Vide order dated 18.10.2004 the ex-parte order was set aside and the applicant was called upon to file a written statement within two weeks which the applicant failed to do. Hence this application which does not disclose any reason for not filing the written statement by the due date. 6. It is clear on a bare reading of sub-rule (i) of Rule 1 of Order 5 and Rule 1 of Order 8 of the Code that the defendant in a suit has to file the written statement within 30 days of the service of summons. In case for any reasons the defendant is not in a position to do so, the Court can permit the defendant to file the written statement within 90 days from the date of service of summons. However, to give the benefit of the extended period of 60 days for filing the written statement to the defendant, the Court has to record the reasons in writing for extending the period. However, to give the benefit of the extended period of 60 days for filing the written statement to the defendant, the Court has to record the reasons in writing for extending the period. In other words, law requires the defendant to file the written statement within 30 days of the service of summons on him and if he can assign any reasons which the Court thinks reasonable for extending the time, the time can be extended by a further period of 60 days. Thus the statute has fixed a period of 90 days for filing the written statement by the defendant from the date of his service as aforesaid. It cannot be disputed that the time prescribed by the statute cannot be extended by the Court in exercise of its inherent powers. 7. In M/s. Mcdowell & Company Ltd. v. M/s. Wine Link L-l Licensee and another [2005 (1) Shim. L.C. 36] while dealing with a similar question, this Court held as under:— "It is evident on a bare reading of the aforesaid provisions that a defendant now has to file the written statement within 30 days from the date of service of summons. In case the defendant is not in a position to file the written statement within the said period of 30 days the Court is given the maximum discretion to allow the defendant to file the written statement within 90 days from the date of service of summons. However, for allowing the defendant to file the written statement after expiry of the initial period of 30 days within the next 60 days of the service of summons, the Court has to record the reasons in writing for allowing the defendant to file the written statement in the extended period. Evidently, these provisions have been made for expeditious progress of the suit and, thus, are salutary and mandatory. The question, therefore, arises whether a Court in exercise of its inherent powers under Section 151 of the Code can extend the maximum period of 90 days prescribed for filing of the written statement, by the defendant. It may be pointed out here that inherent powers of the Court cannot be exercised where there is an express provision of law applicable to the case. Therefore, the inherent powers of the Court cannot be invoked to circumvent the provisions of Rule-1 of Order-5 and Rule-1 of Order-8 of the Code. It may be pointed out here that inherent powers of the Court cannot be exercised where there is an express provision of law applicable to the case. Therefore, the inherent powers of the Court cannot be invoked to circumvent the provisions of Rule-1 of Order-5 and Rule-1 of Order-8 of the Code. The inherent powers are intended for exceptional cases and are not intended to enable the Courts to ignore the provisions of law which govern procedure nor can the inherent powers of the Court be used nor relieve a party from the consequences of his own mistake or to enable him to evade the law specifically providing time for doing certain acts in furtherance of its case within the prescribed time. The inherent powers of the Court cannot be exercised where there is an express provision of law applicable to the case. The inherent powers are intended for exceptional cases and are not intended to enable the Courts to ignore the provisions of law which govern procedure nor can the inherent powers of the Court be used to relieve a party from the consequences of his own mistake or to enable him to evade the law specifically providing time for doing certain acts in furtherance of its case. Therefore, the inherent powers of the Court cannot be invoked to circumvent the provisions of Rule-1 of Order-5 and Rule-1 of Order-8 of the Code." 8. In view of the above settled position in law, the applicant was to file written statement within 30 days of his service which he failed to do. He never assigned any reason for extending the period of 30 days up to 90 days for filing the written statement. Thus having failed to file the written statement even within the maximum statutory period, the applicant is not entitled to the extension of time prayed for. 9. As a result, this application merits dismissal and is accordingly dismissed.