BAIDYANATH SINGH Vs. RAM BINAY SINGH

JUDGEMENT

(1.) The question which is directly placed in focus for consideration and adjudication in this Revision Application against the order of the trial Court rejecting an application, in exercise of its jurisdiction, seeking permission to file Written Statement at the instance of the original defendants in Title Suit No. 94 of 2003 after successfully obtaining extension of time for filing Written Statement on various earlier dates is as to whether "the jurisdiction or the power of the Court to grant permission to file Written Statement beyond the period of 30 days from the date of summons as also beyond the period of 90 days from the date of summons if the Court has found sufficient cause between the period from 30 days to 90 days is impeded or qualified or circumscribed by the amended provision of Order VIII Rule 1 of the Code of Civil Procedure, 1908 (in short the C.P.C.) which came to be amended by Act No. 22 of 2002 of the Code of Civil Procedure (Amendment) Act 2002 with effect from 1-7-2002 on a justifiable ground to the satisfaction of the Court; in other words whether the said amended provision is mandatory or directory ?

(2.) In order to appreciate the merits of the sole question placed in focus highlighted hereinbefore, let there be a narration and projection of skeleton material and relevant facts from the record which are not in controversy in this Revision Application : (1) The service of summons of the Title Suit No. 94 of 2003 was effected, on 6-2-2004. (2) The defendants appeared for the first time on 15-3-2004, the returnable date of summons, and applied for an adjournment for the purpose of filing the Written Statement. (3) The trial Court was pleaased to grant adjournment and the matter was posted for filing Written Statement, on 1-4-2004. (4) on the next date again the original defendants applied for an adjournment for the purpose of filing the Written Statement. (5) The trial Court was pleased to grant time while posting the Suit on the new dated 7-5-2004. (6) Again on the same date the original defendants applied for time and the same was granted by the trial Court posting the case on 21-5-2004. (7) The same process was repeated on 7-7-2004 posting the case on 14-7-2004. (8) Again on 14-7-2004 the same process was repeated and the trial Court granted time till 16-8-2004. (9) Thus, admittedly the Written Statement was not fifed within the period of 90 days and there was a delay of almost three months, eleven days from the period of 90 days. (10) The trial Court upon consideration of the submissions found the case against the original defendants holding that in view of the amended provision the trial Court has no jurisdiction to accept the Written Statement which was filed beyond the period of 90 days. That is how, the original defendants have, now, rushed to this. Court seeking power of jurisdiction in revisional Court against the said order by invocation of the provision of Section 115 of the Code.

(3.) Learned counsels for the parties have offered their submissions. The content and colour of the impugned order of the trial Court is examined. The Legislature wisdom in incorporating the amended provision along with the proviso in Order VIII Rule 1 of the C.P.C. is, also, evaluated and examined. The case law and a decision of the Hon'ble Apex Court by a Bench of three Judges which is rendered in the case of Kailash v. Nanhku, (2005) 4 SCC 480 : AIR 2005 SC 2441 and the proposition of law appertaining to the jurisdiction of the Court in permitting the filing of Written Statement beyond the period of 90 days and the spirit and object of the Legislature in incorporating such a provision in the amended Act are, also, taken into consideration.