C.M.W.P. No.60517 of 2008

25th November, 2008

Petitioner Counsel: SHARAD CHANDRA UPADHAYAY

Cases Cited:
Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, 2005(5) ALL MR 876 (S.C.)=AIR 2005 SC 3353 [Para 4]
Kailash Vs. Nanhku, 2005(5) ALL MR 689 (S.C.)=(2005)4 SCC 480 [Para 4]
Rani Kusum (Smt) Vs. Kanchan Devi (Smt), 2006(1) ALL MR 63 (S.C.)=(2005)6 SCC 705 [Para 4]
Shaikh Salim Haji Abdul Khayum Sab Vs. Kumar, 2006(1) ALL MR 132 (S.C.)=AIR 2006 SC 396 [Para 4]

JUDGMENT

-The petitioner filed a suit for injunction. It transpires that the trial court proceeded ex parte against the defendants, but subsequently, an application for recall of the order was filed by one of the defendants, which was allowed by an order dated 17-11-2007 on payment of cost, pursuant to which, the written statement was filed and it was taken on record. The petitioner filed an application before the trial court praying that the written statement should not be taken on record and should be rejected in view of the fact that the written statement was filed after the stipulated period, provided under Order 8, Rule 1 of the Code of Civil Procedure. The said application was rejected by the trial court, against which, a revision was filed, which was also rejected. The petitioner, being aggrieved, has filed the present writ petition.

2. The learned counsel for the petitioner submitted that in view of Section 15(b)(iv) of the Code of Civil Procedure (Amendment Act, 2002), the amended provision of the Order 8, as made by the Amendment Act, would be applicable to the proceedings, which was pending prior to the enforcement of the Amendment Act. Consequently, no written statement could be filed after the expiry of the stipulated period as provided under Order 8, Rule 1. The learned counsel, consequently, submitted that the trial court committed an error in keeping the written statement on record.

3. In my opinion, the submission of the learned counsel for the petitioner is bereft of merit.

4. The Supreme Court in a large number of decisions in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, AIR 2005 SC 3353 : [2005(5) ALL MR 876 (S.C.)]; Kailash Vs. Nanhku & Ors., (2005)4 SCC 480 : [2005(5) ALL MR 689 (S.C.)]; Rani Kusum (Smt) Vs. Kanchan Devi (Smt) & Ors., (2005)6 SCC 705 : [2006(1) ALL MR 63 (S.C.)] and Shaikh Salim Haji Abdul Khayum Sab Vs. Kumar & Ors., AIR 2006 SC 396 : [2006(1) ALL MR 132 (S.C.)] has held that even after the amendment of the provision of Order 8, Rule 1, pursuant to the Amendment Act of 2002, the provision of the Order 8, Rule 1 is still directory in nature and is not mandatory and that time could be extended on sufficient cause being shown.

5. In the present case, the order to proceed ex parte against the defendants was allowed on payment of cost, and pursuant thereto, the written statement was filed immediately. Once ex parte proceedings are recalled, the time elapsed during the interim period was liable to be ignored, for which, no explanation or reason was required to be given. The trial court passed an order on 17-4-2007 recalling the ex parte decree against the defendants, and on the same day, the written statement was filed without any further delay.

6. Consequently, this Court is of the opinion that the order of the trial court keeping the written statement on the record, does not suffer from any error of law.

7. The writ petition is misconceived and is dismissed summarily.

Petition dismissed.