PITAMBAR SINGH MANKI @ PITAMBAR SINGH Vs. MAKAR SINGH

JUDGEMENT

(1.) HEARD . In Title Partition Suit No. 38 of 2001, the summons were served on the defendants 1 and

(2.) AND thereafter both of them appeared together in the suit on 30.8.2002 and filed a petition for granting time to file written statement, which was allowed and they were permitted to file written statement by 9.9.2002. As no written statement was filed, on 13.12.2002 the plaintiffs filed a petition for proceeding the suit under Order VIII, Rule 1 of the Code of Civil Procedure, which was directed to be put up for hearing on 10.1.2003 and the defendants 1 and 2 were given one more indulgence to file written statement in the meantime. Again on 10.1.2003 the defendants 1 and 2 filed petition for granting further time to file written statement, which was kept on record, however, on 23.1.2003 the defendants 1 and 2 were debarred to file written statement under proviso to Order VIII, Rule 1 of the Code. The defendants 1 and 2 failed to file written statement maximum within 90 days from the date of the service of summons of the suit on them. Admitted position is that the defendants. 1 and 2 appeared in the suit on 30.8.2002 and in spite of indulgences granted by the Court failed to file written statement till 23.1.2003. 2 Mr. V. Shivnath, counsel for the defendants 1 and 2 petitioners herein submitted that in view of Patna amendment to the provisions of Order VIII, Rule 1, even after amendment by virtue of the Code of Civil Procedure (Amendment) Act, 2002, which has come into force with effect from 1.7.2002, the trial Court could have granted further time for filing written statement after expiry of 90 days from the date of service of summons on the defendants concerned and they were entitled to other benefits also. Order VIII, Rule 1 provided as under:

(3.) IN my view, Section 16(1) of the Amendment Act, 2002 clearly provided that except in so far as such amendments or provisions are consistent with the Principal Act as amended by this Act, all other amendments or provisions inserted by the Principal Act by a State Legislature or High Court the commencement of this Act stood repealed and, therefore, the aforesaid Bihar Amendment to Rule 1 of Order VIII made before the commencement of this Act, being not consistent within the Principal Act as amended by this Act, stood repealed.