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2015 DIGILAW 88 (JK)

Ashok Kumar Sharma v. Rashpaul Singh

2015-03-11

TASHI RABSTAN

body2015
JUDGMENT : Tashi Rabstan, J.- 1. When this case was taken up on 06.03.2015, the plea of petitioner was that though the instant petition came to be filed in February, 2009, yet the respondents have failed to file written statement despite lapse of so many years. He, thus, urged that at this stage allowing further extension for filing written statement is barred by the amended provisions of the Code of Civil Procedure. On the other hand, Mr. Wazir, learned senior counsel stated that the written statement has already been prepared and is lying with him but the same could not be filed in view of order dated 03.07.2010 of this Court vide which the parties were directed to first address on the issue whether this Court has the inherent power to extend the time for filing objections. He further stated that the issue could not be addressed as the matter was being adjourned at the request of either of the parties. The parties were accordingly allowed to address the issue in the light of order dated 03.07.2010 and the matter was reserved for orders. 2. Petitioner vehemently argued that in terms of Order VIII Rule 1 of CPC the respondents had to file the written statement within 30 days from the date of service of summons. If they fail to file the same within the aforesaid period, further 60 days time can be extended; meaning thereby after 90 days from the date of service of summons the respondents are barred from filing the written statement. Thus, he vehemently argued that this Court cannot grant further extension of time for filing the written statement, that too at this belated stage. In support of his contention, he relied upon a judgment of the Apex Court in case Om Parkash Gupta v. Union of India, 2000 (4) CPSC 735. He also relied upon a judgment of Punjab & Haryana High Court in case Mohinder Singh v. Sardool Singh, 2005 (2) Civ. C.R. 17 (P & H). 3. In rebuttal, learned senior counsel while referring to Sections 94 and 95 of J & K Representation of the People Act, 1957 vehemently argued that the Code of Civil Procedure is not at all applicable in a petition like the present one. 4. C.R. 17 (P & H). 3. In rebuttal, learned senior counsel while referring to Sections 94 and 95 of J & K Representation of the People Act, 1957 vehemently argued that the Code of Civil Procedure is not at all applicable in a petition like the present one. 4. Section 95 of the Act stipulates that the election petition shall be tried by the High Court, as nearly as may be, in accordance with the provisions applicable under the Code of Civil Procedure. Section 95 is not mandatory in nature to apply the provisions contained in the CPC in toto. 5. A three judges Bench of the Apex Court in case Kailash v. Nankhu, AIR 2005 SC 2441 , while observing that the provisions contained in Rule 1 of Order VIII of CPC have to be construed as directory and not mandatory, has Held as under: "40. Considering the object and purpose behind enacting Rule 1 of Order VIII in the present form and the context in which the provision is placed, we are of the opinion that the provision has to be construed as directory and not mandatory. In exceptional situations, the court may extend the time for filing the written statement though the period of 30 days and 90 days, referred to in the provision, has expired. However, we may not be misunderstood as nullifying the entire force and impact - the entire life and vigour - of the provision. The delaying tactics adopted by the defendants in law courts are now proverbial as they do stand to gain by delay. This is more so in election disputes because by delaying the trial of election petition, the successful candidates may succeed in enjoying the substantial part, if not in its entirety, the term for which he was elected even though he may lose the battle at the end. Therefore, the judge trying the case must handle the prayer for adjournment with firmness. The defendant seeking extension of time beyond the limits laid down by the provision may not ordinarily be shown indulgence." 6. The Apex Court has clarified that the provisions contained in Rule 1 of Order VIII of CPC have to be construed as directory and not mandatory. The defendant seeking extension of time beyond the limits laid down by the provision may not ordinarily be shown indulgence." 6. The Apex Court has clarified that the provisions contained in Rule 1 of Order VIII of CPC have to be construed as directory and not mandatory. While going through the file and the orders passed by this Court what I found is that the present petition came to be filed in February 2009 and notice for service of respondents came to be issued on 27.07.2009. Thereafter, the matter was listed on 12.03.2010, but could not be reached for hearing. Again it was listed on 09.04.2010 and 29.05.2010 when on both occasions there was no appearance on behalf of petitioner and the matter came to be adjourned. Thereafter the matter was listed on 03.07.2010 when for the first time respondents put their appearance through their counsel and sought time for filing response. Before the Court could grant time to respondents for filing response, learned counsel appearing for petitioner objected to the same on the ground that this Court had no power to grant extension of time beyond the stipulated period in view of amended provisions of the Code of Civil Procedure, when fact of the matter was that this Court at no occasion till 03.07.2010 directed the respondents to file response to the election petition, then how the question arose for further extension of time beyond the stipulated period is not understandable. Even the petitioner was also absent on the last two consecutive dates of hearing. Anyhow, this Court vide order dated 03.07.2010 directed the parties to first address on the issue whether this Court has the inherent power to extend the time for filing objections. However, the issue could not be addressed as the matter was being adjourned at the request of either of the parties. Even Mr. Wazir, learned senior counsel made a statement at the Bar that the written statement has already been prepared and is lying with him but the same could not be filed in view of order dated 03.07.2010, therefore, there was no laxity on the part of respondent No. 1. 7. Even Mr. Wazir, learned senior counsel made a statement at the Bar that the written statement has already been prepared and is lying with him but the same could not be filed in view of order dated 03.07.2010, therefore, there was no laxity on the part of respondent No. 1. 7. Therefore, in view of the law settled by the Supreme Court in Kailash v. Nankhu (supra) that the provisions contained in Rule 1 of Order VIII of CPC have to be construed as directory and not mandatory and the fact that this Court never directed the respondents to file their response till 03.07.2010. I deem it proper to direct the respondents to file their response within a period of one week from today. Ordered accordingly. 8. List after two weeks.