NARENDRA KUMAR Vs. MANJU AGARWAL

JUDGEMENT

(1.) THIS petition under Article 227 is filed by the defendant.

(2.) RESPONDENT No. 1 has filed a civil suit for declaration, partition and permanent injunction. After plaint was filed, petitioner was noticed and after service of notice, petitioner has not filed the written statement. Petitioner then filed an application on 20th August, 2004 under Section 151, CPC and prayed that since he is serving at Delhi, therefore, he could not file written statement and counter claim. Counsel for the defendant has received the counter claim by courier, same be taken on record. Trial Court has rejected the prayer and refused to accept the written statement alongwith counter claim. Trial Court has recorded a finding that defendant No. 4 is present through his Counsel from 26-6-2003 but written statement and counter claim was submitted on 20th August, 2004 and written statement was not filed for about one year. Reason for not fling the written statement is that defendant is serving at Delhi and the reason has not been found suitable by Trial Court. Trial Court has considered the provisions of Code of Civil Procedure, wherein it is directed that written statement should be filed within thirty days from the date of service of summons on him or Court may extend time. 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. Thus, it is provided that the written statement should be filed within thirty days. If written statement is not filed within thirty days, Court may allow time to file the same on such other day, for the reasons to be recorded in writing. Thus, Court can extend the time beyond thirty days, for reasons to be recorded in writing and it can not grant time for mere asking. However, in any case time can not be granted beyond ninety days after service of summons. Intention of legislature is that to avoid delay in the suit specific time limit is prescribed for filing written statement, i. e. , thirty days. Beyond thirty days Trial Court must record its reason for further time and if no reason could be assigned it can not grant time without assigning any reason and the Court must work within the time of thirty days and written statement must be filed within thirty days from the date of receipt of summons. However, power of Court for adjournment or granting further time to file written statement is not beyond ninety days. Language of Rule 1 of Order VIII is clear and specific. It is mentioned that the defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence. Legislature has used the word shall. Thus, the provision is mandatory in nature and it is obligatory on the part of defendant to file the written statement within thirty days. However, it is further provided 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. Thus, if there is sufficient cause and sufficient ground is made out for extension of time beyond thirty days, time will not be extended beyond the period of ninety days. Court is also not empowered to accept written statement beyond the period of ninety days. Provisions have been brought in by the Code of Civil Procedure (Amendment) Act, 2002 and the statement of objects and reasons for bringing such amendment provides that a defendant is to file written statement within thirty days from the date of service of summons but such date can be extended upto ninety days by the Court for reasons to be recorded in writing. Statement of objects and reasons of the Amending Act provides that the Code has been amended from time to time with a view to cut short the delay at various levels. Thus, intention of legislature is to cut short the delay in trial. Thus, legislative intent is clear and specific that in order to avoid delay in trial legislature had amended Order VIII Rule 1, CPC, which provides that the written statement must be filed within thirty days from the date of service of summons. However, this period can be extended upto ninety days for the reasons to be recorded in writing and not beyond ninety days.

(3.) IN view of the aforesaid discussion, it is apparent that Trial Court has not committed any error in refusing to accept written statement beyond the period of ninety days. Court has held that there is no reason to extend the time. Excuse given for not filing written statement is that the petitioner is serving at Delhi. This will not be a ground for extending time. Petitioner could not file written statement in time, then question of filing counter claim does not arise. Counter claim can be permitted only against the plaintiff, not against the co-defendant. Under Order VIII Rule 6-A, CPC counter claim can be filed by the defendant against plaintiff but he must file the counter claim at an appropriate time. It provides that defendant may file counter claim for a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired. Where after amendment defendant had failed to avail the remedy of delivery of his defence, he can not be permitted to file counter claim. Even otherwise defendant can file counter claim against the plaintiff only and his counter claim against co-defendant is not maintainable.