STATE OF U P Vs. DHARAM SINGH MAHRA

JUDGEMENT

(1.) K. M. Dayal, J. The present first appeal has been filed by the State of Uttar Pradesh and another against the judgment and decree dated 24-11-1980, passed by Sri U. P. S. Kushwaha, Civil Judge, Nainital, in Suit No. 41 of 1980. Dharam Singh the plaintiff respondent filed a suit for recovery of Rs. 1,30,000/- against the appellants on 14-8-1980. The suit was ordered to be registered after Munsarim's report and summonses were issued to the defendants under O. V, Rule 1 of Civil P. C. fixing 23-9-1980 for filing Written Statement and 30-9-1980, for settlement of issues. On 23-9-1980, an application, 19-D, was moved by the District Government Counsel, (Civil), on behalf of the State of Uttar Pradesh, praying four months' time to file the written statement. The defendant's application was partly allowed on payment of Rs. 10/- as costs. He was directed to file the written statement by 3-11-1980. On 3-11-1980 again an application 21-D was filed by the defendant's counsel for time to file written statement. No. specific period was mentioned in the application but it was mentioned that the written statement had been prepared and sent to the Legal Remembrancer for his approval. The plaintiff's counsel made the following endorsement on that application. "twenty days time may be granted for filing written statement to which I have no objection. "

(2.) FROM the order-sheet it appears that 24-11-1980 was fixed for filing written statement as well as for settlement of issues. On 24-11-1980 when the case was called, counsel for the parties were present. Another application 22-D was moved on behalf of the State Government for time to file the written statement. It was opposed on the ground that the State cannot be granted more than two months' time under O. XXVII Rule 5 of Civil P. C. The following order was passed by the Civil Judge. "case called out. Counsel for the parties are present. 22-D by State of U. P. for time to file W. S. opposed. According to the provisions of Order 27 R. 5 C. P. C. the State can be granted time not exceeding two months to answer the plaintiff. Two months' time has already been given. This Court is not now empowered to grant further time. Rejected. Sd/- U. P. S. Kushwaha".

(3.) THE following points arise in this appeal:- 1. Whether the Court had jurisdiction to extend the time for filing the Written statement beyond two months permitted by Order XXVII Rule 5 of the Code ? 2. Whether the Court below was justified in pronouncing judgment against the defendant under Order VIII Rule 10 of the Code? POINT No. 1 :- Whether the court had jurisdiction to extend the time for filing the Written statement beyond two months permitted by O. XXVII Rule 5 of the Code ? Rules 4 and 5 of O. XXVII are as under:- "4. Agent for Government to receive process:- THE Government pleader in any Court shall be the agent of the Government for the purpose of receiving processes against the Government issued by such Court. 5. Fixing of day for appearance on behalf of Government :- THE Court, in fixing the day for the Government to answer to the plaint, shall allow a reasonable time for necessary communication with the Government through the proper channel, and for the issue of instructions to the Government pleader to appear and answer on behalf of the Government and may extend the time at its discretion (but the time so extended shall not exceed two months in the aggregate ). "