JUDGMENT
Anjani Kumar, J.
1. Heard learned Counsel for the petitioner and Sri D. R. Sharma who has accepted notice on behalf of respondents 1 and 2.
2. In view of order proposed to be passed it is not necessary to invite a counter-affidavit and both the counsels have agreed that the matter may be disposed of at this stage itself.
3. The petitioner approached this Court by means of this writ petition for quashing the order dated 10th March, 2005, passed by the prescribed authority whereby an application filed by the petitioner for setting aside the
4. The brief facts of the case are that before the prescribed authority the landlord filed an application under Section 21(1)(a) of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) which has been registered as P.A. Case No. 23 of 2003. When the application came up before the prescribed authority, the prescribed authority granted time for filing written statement. The petitioner-tenant did not file any written statement. Even after expiry of 90 days no written statement has been filed. In these circumstances the prescribed authority passed an order on 14th October, 2003, to proceed ex parte against the petitioner tenant. On 16th March, 2004, an application has been filed by the petitioner that he may be granted an opportunity to file written statement, on which time was granted but the petitioner did not file any written statement. The prescribed authority again passed an order on 24th May, 2004, for proceeding ex parte against the petitioner-tenant. On 15th September, 2004, the petitioner-tenant filed a written statement along with an application that the same may be accepted on record. The prescribed authority has taken the view that since there is already an order to proceed ex parte against the petitioner-tenant, the application for accepting written statement and for setting aside order to proceed ex parte is rejected and the earlier order to proceed ex parte is upheld.
5. The law regarding acceptance of written statement filed beyond 90 days has now been settled by the decision of Apex Court in Kailash v. Nanhku and Ors., 20O5 (2) AWC 1490 (SC) : 2005 AIR SCW 2346, when the Apex Court has ruled which is summed up by Apex Court in paragraph 45 which is reproduced below :
“45. We sum up and briefly state our conclusions as under :
(i) The trial of an election petition commences from the date of the receipt of the election petition by the Court and continues till the date of its decision. The filing of pleadings is one stage in the trial of an election petition. The power vesting in the High Court to adjourn the trial from time to time (as far as practicable and without sacrificing the expediency and interests of justice) includes power to adjourn the hearing in an election petition affording opportunity to the defendant to file written statement. The availability of such power in the High Court is spelled out by the provisions of the Representation of the People Act, 1951 itself and Rules made for purposes of that Act and a resort to the provisions of the C.P.C. is not called for.
(ii) On the language of Section 87 (1) of the Act, it is clear that the applicability of the procedure provided for the trial of suits to the trial of election petitions is not attracted with all its rigidity and technicality. The rules of procedure contained in the C.P.C. apply to the trial of election petitions under the Act with flexibility and only as guidelines.
(iii) In case of conflict between the provisions of the Representation of the People Act, 1951 and the Rules framed thereunder or the Rules framed by the High Court in exercise of the power conferred by Article 225 of the Constitution on the one hand, and the Rules of Procedure contained in the C.P.C. on the other hand, the former shall prevail over the latter.
(iv) The purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1 of C.P.C. is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though, the language of the proviso to Rule 1 of Order VIII of the C.P.C. is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the Procedural Law, it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by Order VIII, Rule 1 of the C.P.C. is not completely taken away.
(v) Though Order VIII, Rule 1 of C.P.C. is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall net be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case.”
6. This Court relying upon the aforesaid decision has held that in view of law laid down by the Apex Court in the case of Kailash (supra) the order refusing to accept written statement filed by the petitioner-defendant deserves to be set aside and the matter, therefore, deserved to be remanded back to trial court after quashing the orders passed by the trial court as well as the revisional court dated 10.3.2005, with the direction to decide petitioner’s application for accepting written statement in the light of law laid down by the Apex Court and this Court in the case of Masroor Ali v. In-charge District Judge, Kanpur Nagar and Ors., decided on 19th May, 2005.
7. There is yet another reason for setting aside the order as held by Apex Court in the case of Kailash (supra).
8. In view of what has been stated above the orders impugned in the present writ petition deserve to be quashed and are hereby quashed. The matter is remanded back to the trial court for decision afresh on the application of the petitioner for accepting written statement in the light of the observations of Apex Court in the case of Kailash (supra) and in the case of Ramji Dass and Ors. v. Mohan Singh, 1978 ARC 496, I further direct the prescribed authority to accept the written statement already filed by the petitioner-tenant. Since the matter is of the year 2003 the prescribed authority is directed to decide within six months from the date of presentation of a certified copy of this order.
9. With the aforesaid directions and observations this writ petition is allowed.
