HARSH KUMAR SETHI Vs. NARESH CHANDRA

JUDGEMENT

(1.) HEARD learned Counsel for the parties. By mans of present writ petition under Article 226 of the Constitution of India, the petitioner -tenant challenges the order dated 8.2.2005 passed by the Trial Court as well as the order dated 18.3.2005 passed by the Revisional Court, copies whereof are annexed as Annexure Nos. 1 and 2, respectively to the writ petition.

(2.) THE facts giving rise to the present writ petition are that the respondent -landlord (plaintiff in the suit) has filed a SCC Suit No. 38 of 2003 before the Judge Small Cause Court against the petitioner -tenant (defendant in the suit) for arrears of rent and ejectment. It is apparent from record that the service of summons were affected through publication on 15.10.2003. In the absence of the defendant -petitioner, on 15.10.2003 the case was directed to proceed ex parte against him. On 27.11.2003, the defendant -petitioner filed an application under Order IX, Rule 7 of the Code of Civil Procedure along with an affidavit with the prayer to set aside the order dated 15.10.2003 whereby the case was directed to proceed ex parte with further prayer that an opportunity of hearing be given to the defendant -petitioner before any order on the application under Order IX, Rule 7 of the Code of Civil Procedure filed by the defendant -petitioner could be passed. On the request of the defendant -petitioner a copy of the plaint was made available to the defendant by the plaintiff. Plaintiff -respondent filed his objection along with the counter affidavit with the prayer to dismiss the application filed by the defendant -petitioner under Order IX, Rule 7 of the Code of Civil Procedure. However, the application filed by the defendant -petitioner under Order IX, Rule 7 of the Code of Civil Procedure was allowed and the order to proceed ex parte against the defendant dated 15.10.2003 was set aside on 5.11.2004. Thereafter, the defendant -petitioner filed his written statement on the same date, i.e. 5.11.2004. Later on the plaintiff -respondent moved an application with the prayer not to accept the written statement filed by the defendant -petitioner, as it was filed beyond 90 (ninety) days of the service of summons. The defendant -petitioner field his objection to the application filed by the plaintiff -respondent with the prayer to dismiss the application filed by the plaintiff -respondent. Thereafter, the Trial Court allowed the application filed by the plaintiff -respondent and refused to accept the written statement filed by the defendant -petitioner on the ground that the provisions of Order VIII, Rule 1 of the Code of Civil Procedure, as amended in the year 1999, are mandatory and after the expiry of period of ninety days, the Court has no power to extend the time for filing the written statement.

(3.) LEARNED Counsel appearing on behalf of the tenant -petitioner submitted that in view of the decision of the Apex Court in Kailash v. Nanhku and others : 2005 (31) AIC 105 : 2005 (1) ARC 861, the view taken by the Revisional Court as well as by the Trial Court in rejecting the application filed with the prayer to accept the written statement, deserves to be quashed, as both the Courts below have rejected the application for accepting the written statement only on the ground that the provisions of Order VIII, Rule 1 of the Code of Civil Procedure, as amended in the year 1989 being mandatory, the Court do not have any power to extend the time for filing the written statement beyond ninety days from the date of service of summons. In view of the law laid down by the Apex Court in the case of Kailash (supra) and this Court in the case of Masroor Ali v. Court of Incharge District fudge/Additional District Judge, Court No. 1, Kanpur Nagar and others, passed in Civil Misc. Writ Petition No. 25816 of 2005, decided on 19th May, 2005, the arguments advanced on behalf of learned Counsel for the tenant -petitioner deserves to be accepted. In view of what has been stated above, this writ petition succeeds and is allowed. The order dated 8.2.2005, passed by the Trial Court and the order dated 18.3.2005 passed by the Revisional Court, rejecting the petitioner's application for accepting the written statement, are quashed. The matter will now go back to the Trial Court with the direction to decide the defendant's petitioner's application for accepting the written statement in accordance with the law laid down by the Apex Court as well as by this Court in the case of Kailash (supra) and Masroor Ali (supra).