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2005 DIGILAW 783 (AP)

M. Rama Swamy v. M. Sekhara Gupta

2005-08-20

L.NARASIMHA REDDY

body2005
( 1 ) THE petitioner is the plaintiff in O. S. No. 12 of 2003 on the file of the learned Senior Civil judge, Kurnool. He assails the docket order, dated 9-6-2003, passed by the trial Court, permitting the respondent herein to file written statement, after the expiry of the time stipulated under Rule 1 of Order VIII C. P. C. ( 2 ) THE petitioner filed the suit for the relief of declaration of title and recovery of possession of the suit schedule property. The respondent herein is the 2nd defendant. He was served with the summons on 8-2-2003. He did not file the written statement till June, 2003. On 9-6-2003, l. A. No. 188 of 2003 was filed under Section 151 C. P. C. with a prayer to receive the written statement. The affidavit in support of the I. A. was filed by the Advocate s Clerk of the respondent. The trial Court allowed the same. ( 3 ) SMT. Shanthi Neelam, learned counsel for the petitioner submits that the respondent was under obligation to file the written statement in the suit, within 30 days from the date of receiving the summons and if there existed any valid reasons, that prevented him from filing it within that time, it was open to him to file an application to extend the time not beyond 90 days therefrom. She contends that the respondent did not explain the reasons, on account of which, he could not file the written statement, within the time stipulated under Rule 1 of Order VIII C. P. C. and that the affidavit of an Advocate s Clerk was filed. She further submits that the trial court did not give an opportunity to the petitioner to put forward his contention, nor did it record its satisfaction about the reasons pleaded for extending the time. ( 4 ) THOUGH the notice was served upon the respondent, he has not chosen to enter appearance. ( 5 ) THE controversy in this revision is about the grant of permission to the respondent herein, 2nd defendant in the suit, to file written statement beyond the time stipulated under Rule 1 of Order VIII C. P. C. The parliament amended Rule 1 of Order VIII c. P. C. , after recognizing the necessity to require the defendants in the suits to file the written statements, within a stipulated time. Under the amended provision, it is the obligation of the defendant in a suit to file the written statement, within 30 days from the date of receiving summons. Proviso to Rule of Order VIII C. P. C. empowers the Courts to extend the time beyond 30 days, but not exceeding 90 days, for reasons to be recorded in writing. Recently, the Supreme Court and this Court held that if the situation warrants and extraordinary circumstances are pleaded, time can be extended beyond 90 days also. However, valid reasons need to be recorded for this purpose. ( 6 ) WHEN proviso to Rule 1 of Order VIII c. P. C. , in clear terms, mandates that the time beyond 30 days can be extended "for reasons to be recorded in writing", it is the obligation of the Court to record such reasons, before the time is extended. The reasons must not only he pleaded specifically, but also must be to the satisfaction of the Court. In the instant case, the delay was beyond 90 days. Therefore, a very strong case was required to be made by the respondent, to satisfy the Court to receive the written statement at that belated stage. Otherwise, the very purport of the amendment caused to rule 1 of Order VIII C. P. C. would be defeated. ( 7 ) THIS being the requirement under law, the trial Court did nothing more than accepting whatever pleaded by the Advocate s Clerk of the respondent. The whole order reads as under: "the counsel for the petitioner present. In the circumstances the petition is allowed. " it hardly constitutes any compliance with the requirement under Rule 1 of Order VIIIC. P. C. , and in particular, the proviso thereof. Not a single reason worth its name was recorded. The mere presence of the counsel for the respondent herein cannot be treated as a factor or reason to condone the delay in filing the written statement. The trial Court ought to have been cautious in passing such orders. The affidavit was filed by the Advocate s clerk and not the respondent himself. The law requires the defaulting defendant to furnish the reasons and not either his advocate much less his Clerk. It was not even urged that the delay occurred in the hands of the Clerk. The trial Court ought to have been cautious in passing such orders. The affidavit was filed by the Advocate s clerk and not the respondent himself. The law requires the defaulting defendant to furnish the reasons and not either his advocate much less his Clerk. It was not even urged that the delay occurred in the hands of the Clerk. With the failure of the respondent to file the written statement within the stipulated time, a valid right had accrued to the petitioner and that cannot be taken away without hearing him or putting him on notice. The trial Court did not bestow its attention in this regard. ( 8 ) FOR the foregoing reasons, the order under revision is set aside and the Civil revision Petition is allowed. It is, however, made clear that if the respondent herein makes an appropriate application in accordance with law, the trial Court shall consider the same, duly following the procedure and after giving an opportunity to the petitioner herein. There shall be no order as to costs.