Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 279 (ALL)

Vijay Singh Parihar @ Munnu Singh v. Mamta Dixit

2019-02-01

MANOJ KUMAR GUPTA

body2019
JUDGMENT : Manoj Kumar Gupta, J. 1. The instant petition is directed against order dated 21.5.2018 passed by Judge, Small Causes in SCC Suit No. 155/2014 rejecting the application 32Ga for recalling order dated 21.5.2018 and for granting time for filing written statement. The order passed by the Revisional Court dated 8.1.2019 dismissing the revision is also under challenge. 2. The plaintiff respondent instituted SCC Suit No. 155/2014 against the petitioner for recovery of arrears of rent and for eviction from building No. 124/323B Block, Govind Nagar, Kanpur Nagar. The petitioner upon being served with summons appeared in the suit on 27.11.2014 and filed an application under Order 7, Rule 11 CPC for rejection of the plaint. The application was rejected by the trial Court by order dated 30.9.2015 and the petitioner was granted time to file written statement. However, the petitioner kept on buying time and did not file written statement even up to 21.5.2018. On 21.5.2018, the petitioner was not present before the trial Court nor any application was filed by him seeking adjournment. Consequently, the trial Court was compelled to pass an order forfeiting the right of the petitioner to file written statement and directed for proceedings being held ex-parte against him. On 31.5.2018, the petitioner filed an application seeking recall of the order dated 21.5.2018. On 1.8.2018, he sought adjournment on the pretext that he had engaged a new counsel and who would inspect the file. On 8.8.2018, the petitioner again sought adjournment on the same ground. This time, the trial Court allowed the adjournment application by imposing cost of Rs. 1000/-and further cautioned the petitioner that in case, he seeks further adjournments, orders will be passed ex-parte. 3. The trial Court while considering the application of the petitioner seeking recall of order dated 21.5.2018 has observed that the explanation given by the petitioner that he could not file written statement on 21.5.2018, as his counsel had to leave for his home town for some personal work is not at all convincing. It has also held that there is no valid explanation on part of the petitioner for not being able to file written statement since last four years. Accordingly, the application has been rejected. 3. The Revisional Court has endorsed the findings recorded by the trial Court. It has also held that there is no valid explanation on part of the petitioner for not being able to file written statement since last four years. Accordingly, the application has been rejected. 3. The Revisional Court has endorsed the findings recorded by the trial Court. It has also taken note of the fact that there was a direction by this Court for deciding the proceedings within six months, but still the petitioner had succeeded in delaying the proceedings for considerable time. 4. Counsel for the petitioner submitted that one more opportunity be granted to the petitioner to file written statement, and that the view taken by the Courts below is highly technical. 5. Order 8, Rule 1 CPC was amended by substitution by Act No. 22 of 2002 with effect from 1.7.2002 and it specifically provides that the defendant shall file written statement within thirty days from the date of service of summons on him. The Proviso thereto stipulates 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. 6. In Kailash Versus Nanhku, (2005) 4 SCC 480 , the Supreme Court has held that the reasons for which time could be extended for filing written statement has to be such which are beyond the control of a party. It is worthwhile to reproduce the following extract from the said judgment : - "Ordinarily, the time schedule prescribed by Order VIII, Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for asking more so, when the period of 90 days has expired. The extension of time sought for by the defendant from the court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for asking more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the Court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order VIII, Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended." 7. In the instant matter, the petitioner had appeared in the proceedings on 27.11.2014 and since then, he had succeeded in getting the matter adjourned on one pretext or other without filing written statement. This Court, therefore, fully agrees with the Court below that the explanation furnished for not being able to file written statement was not at all satisfactory, much less occasioned by any reason beyond the control of the petitioner. 8. The petition lacks merit and is dismissed.