JUDGMENT
V.S. Bajpai, J.
1. This civil revision was taken up today as fresh, Notice was earlier accepted by Sri P.K. Jain, Advocate, on behalf of the respondent. I have heard the learned Counsel for the revisionists and the respondent.
2. The revision is directed against the order passed by the Civil Judge, Senior Division, District Ghaziabad, on 9.2.2005 in Original suit No. 869 of 2002, Dr. Bharat Kumar Gupta v. Modi Spinning and Weaving Mills and Ors., allowing the application of the respondent under Order VIII, Rule 1 C.P.C. and rejecting the written statements filed by the revisionists. The trial Court further directed the suit to proceed in view of the provisions of Order VIII, Rule 10 C.P.C.
3. Facts in brief are that the respondent had filed a suit on 5.7.2002 in which 6.9.2002 was fixed for filing of the written statement. On that date the revisionists’ Counsel appeared before the Court and sought time to file written statement. Thereafter, the revisionists continued to move adjournment applications on 13.9.2002, 25.10.2002, 23.11.2002, 11.2.2003, 3.4.2003, 3.12.2003; 1.4.2004 and 22.3.2004. Even after 22.3.2004 the revisionists sought adjournments. Ultimately, the revisionists filed their written statements on 8.4.2004 and 1.9.2004. These written statements were not filed within 90 days of the date of service of summons upon them. The respondent then moved the application under Order VIII, Rule 1 C.P.C. for rejecting both the written statements and to proceed to decide the suit under Order VIII, Rule 10 C.P.C.
4. Aggrieved by this order the defendant-revisionists have filed this revision.
5. For ready reference the provisions of Order VIII, Rule 1 C.P.C., as amended by the Code of Civil Procedure (Amendment) Act 2002, is reproduced below:
“Written Statement. The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:
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 days, 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.”
6. A number of Civil revisions are being filed in which the written statements have been rejected and the suit has been ordered to proceed under Order VIII, Rule 10 C.P.C, On the question whether the trial Court can extend the time under Section 151 and 148 C.P.C. and accept the written statement even after expiry of ninety days from the date of service of summons or not, this Court has on earlier occasions given conflicting opinions. In the case of Nanku v. Kailash and Ors., 2004 (2) ARC 779, Hon’ble S.U. Khan J. has held as follows:
“Order VIM Rule 1 C.P.C. as amended in 2002 has on the one hand provided discretion to the Court to accept written statement beyond thirty days from the date of service of summons but has simultaneously circumscribed the same also by prohibiting exercise of discretion beyond ninety days from the date of service of summons, If no discretion had been provided then there could have been scope for the Court to draw upon miscellaneous discretionary powers provided for the C.P.C. through Sections 151 and 148. However, when limited discretion is provided for then resort to miscellaneous discretionary powers cannot be had.
Therefore, inspite of the fact that sufficient ground for condonation of delay of five days in filing written statement has been made out I hold that the Court has got no power or jurisdiction to take the written statement on record. Accordingly, the written statement cannot be taken into consideration. However, written statement shall physically be kept in the record of the election petition.”
7. Similar view was taken by Hon’ble S. Harkauli J. in the case of Sunder Lal Verma v. Ranvir Rana, 2005 (1) ARC 174. He held that:
“Although Section 151 C.P.C. states that “nothing in this Code shall be deemed to limit or otherwise effect” the inherent power of the Court to make such order as may be necessary for ends of justice but is well-settled that this inherent power cannot be exercised to override the express prohibition contained in that code.”
and that, “In these circumstances after the amendment of Order VIII, Rule 1 C.P.C. the Court does not have any jurisdiction to extend the time for filing written statement beyond maximum period of 90 days from the date of service of summons and this express prohibition relating to the period beyond that 90 days cannot be over-ridden by resort to Section 151 C.P.C.”
He further held that:
“Written statement is not an appeal or an application or even a suit and therefore, Limitation Act cannot help the Court for condoning the delay.”
8. In the case of Sushil Singh v. Prabhu Narain Yadav and Ors., Election Petition No. 1 of 2002, decided on 20.1.2004, Hon’ble Sunil Ambwani J. held that:
“The entire object of introducing amendment by C.P.C. (Amendment) Act, 2002 was to expedite the decision of the suits. Order VIII, Rule 1 was amended to specify a time limit for filing written statement. The Court was given liberty to extend the time which shall not be later than 90 days from the date of service of summons. There are no provisions under the Code and Section 151, C.P.C. cannot be called into aid to extend the period where the code has expressly provided outer limit for such extension. The entire object of amendment to C.P.C. will be defeated if the Court readily exercises the power to extend the period allowed by the Court, for which no relaxation has been permitted.”
9. The Election Petitioner. Sushil Singh filed a Special Leave Petition before the Apex Court. The Apex Court granted the leave and decided the appeal on 12.3.2004. It was held by the Apex Court that:
“By the impugned order of the High Court, the right of the appellant herein to file the written statement has been closed. So far as the view taken by the High Court on closing the right of the appellant to file the written statement is concerned, we cannot probably fined and fault therewith.”
But at the same time, the Apex Court observed that:
“However, it is stated at the Bar by the learned Counsel for the appellant that the written statement has already been filed on 24.1.2004. In view of that statement, we are inclined to show some indulgence to the appellant. If the written statement has already been filed on 24.1.2004 as stated by the learned Counsel for the appellant, it is directed that the same shall be taken on record but subject to payment of Rs. 20,000/- by way of costs by the appellant herein within a period of four weeks from today.”
10. This judgment of the Apex Court clearly indicates that the order of Hon’ble Sunil Ambwani, J. in so far as it related to the closure of the appellant’s right to file the written after the expiry of 90 days of the date of service of summons, was held to be correct and valid.
11. On the other hand, in the case of Shah Mohammad v. Incharge District Judge, Lucknow, 2005 (1) ARC 417, relying upon the case of Dr. Sukhdev Singh v. Amrit Pal Singh and Ors., reported in AIR 2003 Delhi 280, and Topline Shoes Ltd., v. Corporation Bank, AIR 2002 SC 2487, Hon’ble D.P. Singh, J. has held that:
“Learned Counsel for the petitioner submits that the written statement is ready and he wants to file the same immediately. After considering the facts of the present case as well as the impugned order, I am of the view that petitioner may be permitted to file written statement.”
12. In other words, Hon’ble D.P. Singh, J. has taken the view that the intention to provide a time frame to file a written statement is really meant to expedite the hearing of the case, and to avoid unnecessary adjournments to linger on the proceedings on the pretext of filing written statement, The provision of Order VIII, Rule 1 C.P.C. as framed does not indicate that it is mandatory in nature.
13. The view taken by Hon’ble D.P. Singh, J. in Shah Mohammad’s case (Supra) is, therefore, in direct conflict with the views taken by Hon’ble S.U. Khan, J. in Nanku’s case (supra), by Hon’ble Sushil Harkauli, J. in Sundar Lal’s case (supra) and by Hon’ble Sunit Ambwani, J. in Shushil Singh’s case (supra).
14. In view of these two conflicting views of this Court, it has become necessary under Rule 6 of Chapter V, of High Court Rules that the Hon’ble the Chief Justice be requested to constitute a Larger Bench to decide the following questions of law to bring certainty to the legal position which is cropping up in the Court almost every day;
Questions for reference to the Larger Bench:
1. Whether provisions of Order VIII Rule 1 C.P.C. are mandatory and the Court cannot permit the filing of the written statement beyond a period of 90 days from the date of service of the summons upon the defendant?
2. Whether the delay in filing the written statement beyond the maximum statutory period of 90 days as prescribed in Order VIII Rule 1 C.P.C. can be condoned?
3. Whether the view taken by Hon’ble D.P. Singh, J. in the case of Shah Mohammad v. Incharge District Judge, Lucknow reported in 2005 (1) ARC 417 is a correct law?
15. In these circumstances, the file be laid before Hon’ble the Chief Justice for constituting a Larger Bench for decision on the aforesaid three questions of law.
16. The Revision be listed after the decision of the Larger Bench is received.
17. Copy of this order shall be provided to the Counsel for the revisionists as well as the Counsel for the respondent.