ORDER S.P. Mehrotra, J.
1. Pursuant to the order dated 6.5.2005, the case is listed today.
A perusal of the said order dated 6.5.2005 shows that in view of the fact that pursuant to the order dated 1.4.2005, notices issued by ordinary process as well as by Registered Post A/D were sent to the respondent Nos. 8 and 14 on 3.5.2005 fixing 6.5.2005, it was observed that it was necessary to await service of the said notices, and, accordingly, the case was directed to be listed on 8.7.2005 (i.e., today).
Office has submitted its Report dated 8.7.2005 in regard to service of the said notices sent by ordinary process as well as by Registered Post A/D to the respondent Nos. 8 and 14.
As regards the notice sent to the respondent No. 8 by Registered Post A/D, the said Office Report shows that the registered envelope containing the said notice has been received back with the following endorsement:
Not met.
Sd. Illegible 5.5.05.
As regards the notice sent to the respondent No. 8 by ordinary process, the said Office Report dated 8.7.2005 refers to the Communication dated 19.5.2005 sent by the District Judge, Farrukhabad to the Deputy Registrar (Judicial) of this Court.
A perusal of the said Communication dated 19.5.2005 sent by the District Judge, Farrukhabad shows that as the notice to be served on the respondent No. 8 was received on 18.5.2005, i.e., after the date fixed in the said notice (namely, 6.5.2005) had already passed, it was not possible to serve the said respondent, and, accordingly, the notice alongwith the copy of the Election Petition was being returned to this Court.
In view of the circumstances mentioned in the said Communication of the District Judge, Farrukhabad dated 19.5.2005, I am of the opinion that it is necessary that fresh notice be sent .to the respondent No. 8 by ordinary process fixing the next date fixed in the matter.
Accordingly, it is directed that fresh notice by ordinary process be issued to the respondent No. 8 fixing the next date fixed in the matter.
Learned Counsel for the petitioner will take necessary steps within one week.
As regards the notice sent to the respondent No. 8 by Registered Post A/D, the matter will be considered on the next date fixed in the matter.
As regards the notice sent to the respondent No. 14 by ordinary process, the said Office Report dated 8.7.20 05, interalia, states that the said notice has not come back with any Report.
As regards the notice sent to the respondent No. 14 by Registered Post A/D, the said Office Report dated 8.7.2005, interalia, states that neither Acknowledgement Due Card nor envelope has been received back so far.
The matter regarding service of notice sent by ordinary process as well as by Registered Post A/D to the respondent No. 14 will be considered on the next date fixed in the matter.
Office will submit fresh Report regarding service of the said notices sent to the respondent No. 14 on the next date fixed in the matter.
Order On
2. (1) Civil Misc. Application No. 178738 of 2004 (Paper No. A-2) (2) Civil Misc. Application No. 218252 of 2004 (Paper No. A-11) The aforesaid Civil Misc. Application No. 178738 of 2004 (Paper No. A-2) (shown at Sl. No. 1 above) under Section 148 of the Code of Civil Procedure was filed on behalf of the respondent No. 1 on 30.9.2004.
It is, interalia, prayed in the aforesaid application (Paper No. A-2) that six weeks' further time be granted for filing Written Statement, and in the mean time, the applications filed on behalf of the respondent No. 1 under Order 6, Rule 16 of the Code of Civil Procedure, under Order 7, Rule 11 of the Code of Civil Procedure, and under Section 86(1) of the Representation of the People Act, 1951 be decided.
On 8.10.2004, the consideration of the aforesaid application (Paper No. A-2) was postponed on the prayer made by Shri Navin Sinha, learned Senior Counsel assisted by S/Shri K.R. Singh and V.D. Chauhan, learned Counsel for the respondent No. 1.
It further appears that a reply affidavit/counter affidavit, sworn on 4.11.2004 (Paper No. A-10) was filed on behalf of the petitioner in reply to the aforesaid application (Paper No. A-2).
The aforesaid application (Paper No. A-2) was taken-up before the Court on 30.11.2004. Shri Ravi Shanker Prasad, learned Counsel for the petitioner stated that as the aforesaid reply affidavit/ counter affidavit had been sworn before the Oath Commissioner of Delhi High Court, a proper affidavit would be filed on behalf of the petitioner in reply to the aforesaid application (Paper No. A-2). On prayer made by Shri Ravi Shanker Prasad, learned Counsel for the petitioner, two weeks' time was granted for filing a fresh affidavit in reply to the aforesaid application (Paper No. A-2). Reference in this regard may be made to the order dated 30.11.2004 passed by the Court on the aforesaid application (Paper No. A-2).
When the aforesaid application (Paper No. A-2) was taken-up before the Court on 28.1.2005, Shri B.D. Mandhyan, learned Senior Counsel assisted By Shri Ravi Shanker Prasad, learned Counsel for the petitioner stated that the petitioner did not propose to file any reply to the aforesaid application (Paper No. A-2).
Thus, while, as per the own stand of the learned Counsel for the petitioner, the aforesaid reply affidavit/ counter affidavit (Paper No. A-10) filed on behalf of the petitioner in reply to the aforesaid application (Paper No. A-2) was not a proper affidavit, the learned Senior Counsel appearing for the petitioner on 28.1.2005 stated that the petitioner did not propose to file any reply to the aforesaid application (Paper No. A-2).
In the circumstances, the averments made in the aforesaid application (Paper No. A-2) remained uncontroverted on behalf of the petitioner.
As regards Civil Misc. Application No. 218252 of 2004 (Paper No. A-11) (shown at Sl. No. 2 above), the said application was filed on behalf of the respondent No. 1 under Order 8, Rule 1 read with Section 151 of the Code of Civil Procedure, interalia, praying for accepting the Written Statement filed on behalf of the respondent No. 1, and taking the same on record treating the same to be filed within time. The said application (Paper No. A-11) was filed on 1.12.2004. )
3. It may be mentioned that the Written Statement (Paper No. A-11) was filed on behalf of the respondent No. 1 on 25.11.2004.
On 28.1.2005, counter affidavit, sworn on 16.12.2004, alongwith an application in reply to the aforesaid application (Paper No. A-11) was filed on behalf of the petitioner. The said application and counter affidavit filed on behalf of the petitioner are Paper No. A-12 on the record.
Reference in this regard may be made to the order dated 28.1.2005 passed on the aforesaid Civil Misc. Application No. 218252 of 2004 (Paper No. A-11) (shown at Sl. No. 2 above).
It further appears that on 1.4.2005, rejoinder affidavit was filed on behalf of the respondent No. 1 (Paper No. A-20) in reply to the counter affidavit (Paper No. A-12) filed on behalf of the petitioner in respect of the aforesaid application (Paper No. A-11) (shown at Sl. No. 2 above).
Taking up first the aforesaid application (Paper No. A-2) (shown at Sl. No. 1 above), as mentioned above, the said application (Paper No. A-2), interalia, prayed for grant of six weeks' time for filing Written Statement on behalf of the respondent No. 1. The said application was supported by an affidavit of Chandra Bhushan Singh (respondent No. 1), sworn on 29.9.2004.
It is, interalia, stated in the said affidavit of Chandra Bhushan Singh (respondent-No. 1) that the respondent No. 1 had filed applications under Order 6, Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure, and if the pleadings as mentioned in the said applications were struck off and the Election Petition was dismissed, there would be no necessity of filing any Written Statement.
As noted above, the averments made in the aforesaid application (Paper No. A-2) remained uncontroverted on behalf of the petitioner in view of the statement made on behalf of the petitioner that the petitioner did not propose to file .any reply to the said application (Paper No. A-2).
4. Coming to the application (Paper No. A-11) (shown at Sl. No. 2 above), it is, interalia, prayed in the said application that the Written Statement filed on behalf of the respondent No. 1 be accepted and be taken on record treating the same to be filed within time.
The said application (Paper No. A-11) is supported by an affidavit of Chandra Bhushan Singh, respondent No. 1, sworn on 30.11.2004.
It is, interalia, stated in the said affidavit that the respondent No. 1 was served with a copy of the Election Petition on 2.9.2004; and that the respondent No. 1 had filed applications under Order 6, Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure as well as application under Section 86(1) of the Representation of the People Act, 1951 with a prayer to dismiss the Election Petition without any trial at this stage itself; and that the respondent No. 1 had also filed an application under Section 148 of the Code of Civil Procedure for extension of time for filing the Written Statement; and that the said applications were still pending and had not as yet been decided; and that on account of the pendency of the said applications, the respondent No. 1 could not file Written Statement earlier; and that since the said applications could not be decided so far, the respondent No. 1 had filed his Written Statement within the time as prescribed under Order 8, Rule 1 of the Code of Civil Procedure; and that the Written Statement filed by the respondent No. 1 was within time.
As mentioned above, counter affidavit (Paper No. A-12), sworn on 16.12.2004, has been filed on behalf of the petitioner, in reply to the aforesaid application (Paper No. A-11).
It is, interalia, stated in the said counter affidavit that the Written Statement having been filed after the expiry of 30 days, the same could not be accepted in view of the fact that the period prescribed under Order 8, Rule 1 of the Code of Civil Procedure had already expired, and within such period, no application had been filed by the respondent No. 1; and that filing of the applications under Order 6, Rule 16 and Order 7, Rule 11 of the Code of Civil Procedure and application under Section 86(1) of the Representation of the People Act, 1951 would not extend the period prescribed under Order 8, Rule 1 of the Code of Civil Procedure; and that the application filed under Section 148 of the Code of Civil Procedure was not an application for grant of time for filing the Written Statement.
In reply to the aforesaid counter affidavit (Paper No. A-12), rejoinder affidavit, sworn on 31.3.2005 (Paper No. A-20), was filed on behalf of the respondent No. 1.
It is, interalia, stated in the said rejoinder affidavit that the responaent No. 1 had already filed on 30.9.2004 an application under Section 148 of the Code of Civil Procedure for grant of further time for filing Written Statement; and that upon the said application, the counsel for the petitioner made a statement on 28.1.2005 that the petitioner would not file any reply/counter affidavit to the said application; and that it was incorrect to say that the respondent No. 1 had not filed any application for grant of any further time for filing Written Statement; and that the respondent No. 1 had filed his Written Statement within the time prescribed under Order 8, Rule 1 of the Code of Civil Procedure.
5. I have heard Shri Navin Sinha, learned Senior Counsel assisted by S/Shri K.R. Singh and V.D. Chauhan, learned Counsel for the respondent No. 1 and S/Shri B.D. Mandhyan, Satish Trivedi and U.N. Sharma, learned Senior Counsel assisted by Shri Ravi Shanker Prasad, learned Counsel for the petitioner on the aforesaid applications, and perused the record.
It is submitted by Shri Navin Sinha, learned Senior Counsel appearing for the respondent No. 1 that in view of the facts and circumstances stated in the aforesaid applications, Written Statement filed on behalf of the respondent No. 1 be accepted and be taken on record treating the same to be filed within time. It is submitted that the averments made in the aforesaid application (Paper No. A-2) filed on behalf of the respondent No. 1 under Section 148 of the Code of Civil Procedure remained uncontroverted in view of the statement made on behalf of the petitioner on 28.1.2005 that the petitioner did not propose to file any reply to the said application.
It is further submitted that bonafide cause has been shown in the aforesaid application (Paper No. A-2) (shown at SI. No. 1 above) as well as in the aforesaid application (Paper No. A-11) (shown at Sl. No. 2 above) for not filing the Written Statement within 30 days of the receipt of the notice of the Election Petition on 2.9.2004.
It is pointed out that in case the applications under Order 6, Rule 16 and Order 7, Rule 11 of the Code of Civil Procedure and the application under Section 86(1) of the Representation of the People Act, 1951 would be decided in favour of the respondent No. 1, the Election Petition would be dismissed at this stage itself, and there would be no necessity to go to trial.
It is further submitted that in any case, the respondent No. 1 filed the aforesaid application (Paper No. A-2) on 30.9.2004, interalia, praying for extension of time for filing Written Statement. The Written Statement was in fact filed on 25.11.2004, i.e., within 90 days of the service of notice of the Election Petition on 2.9.2004.
In the circumstances, the submission proceeds, the period for filing the Written Statement be extended till 25.11.2004, and the Written Statement filed on the said date be taken on record.
In reply, Shri B.D. Mandhyan, learned Senior Counsel appearing for the petitioner submits that the respondent No. 1 having failed to file the Written Statement within 30 days of the receipt of the notice of the Election Petition, the Written Statement filed on behalf of the respondent No. 1 on 25.11.2004, i.e., after the expiry of 30 days may not be taken on record.
It is further submitted that in case the said Written Statement is taken on record, the same may be done subject to payment of cost to the petitioner.
6. I have considered the submissions made by the learned Counsel for the parties.
In order to appreciate the submissions made by the learned Counsel for the parties, it is necessary to refer to Order 8, Rule 1 of the Code of Civil Procedure, which is quoted below:
[1. 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 day, 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.] A perusal of the Office Report dated 8.10.2004 shows that the notice of the Election Petition was served on the respondent No. 1 on 2.9.2004 by ordinary process. Averments to the same effect have been made in paragraph 2 of the affidavit accompanying the aforesaid application (Paper No. Aril) (shown at Sl. No. 2 above).
It further appears that the aforesaid application (Paper No. A-2) (shown at Sl. No. 1 above) was filed on behalf of the respondent No. 1 on 30.9.2004. The said application (Paper No. A-2) was an application under Section 148 of the Code of Civil Procedure, and it was, interalia, prayed in the said application that 6 weeks' further time be granted for filing the Written Statement on behalf of the respondent No. 1.
The said application (Paper No. A-2) having been filed on 30.9.2004 was evidently filed within 30 days of the receipt of the notice of the Election Petition by the respondent No. 1 on 2.9.2004. As already mentioned above, the averments made in the said application (Paper No. A-2) remained uncontroverted on behalf of the petitioner.
It is further evident that the Written Statement was in fact filed on behalf of the respondent No. 1 on 25.11.2004 i.e., within the period of 90 days from the date of receipt of the notice of the Election Petition on 2.9.2004. The respondent No. 1 has further filed the aforesaid application (Paper No. A-11) under Order 8, Rule 1 read with Section 151 of the Code of Civil Procedure, on 1.12.2004, interalia, praying that the Written Statement be accepted and be taken on record. Counter affidavit and rejoinder affidavit have been exchanged in regard to the aforesaid application (Paper No. A-11).
A perusal of Order 8, Rule 1 of the Code of Civil Procedure shows that the defendant is required to file the Written Statement within 30 days from the date of service of summons on him.
However, the proviso to Rule 1 of Order 8 of the Code of Civil Procedure provides that where the defendant fails to file the Written Statement within the said period of 30 days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than 90 days from the date of service of summons. Hence, in view of the said proviso to Rule 1 of Order 8 of the Code of Civil Procedure, it is open to the Court to permit the defendant to file Written Statement even if the period of 30 days from the date of service of summons on the defendant has expired.
This may be done by the Court by recording reasons in writing. However, the extension of period cannot be beyond 90 days from the date of service of summons.
It may be mentioned that in Kailash v. Nanhku and Ors. , their Lordships of the Supreme Court have laid down as follows (Paragraph 45 of the said AIR):
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 Code of Civil Procedure 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 Code of Civil Procedure 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 Code of Civil Procedure 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 Code of Civil Procedure 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 Code of Civil Procedure 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 Code of Civil Procedure is not completely taken away.
(v) Though Order VIII, Rule 1 of the CPC 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 not 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.
Hence, in view of the said decision of the Supreme Court, it is open to the Court to grant extension of time even after the period of 90 days as contemplated in the proviso to Rule 1 of Order 8 of the Code of Civil Procedure, has expired, provided there are exceptional circumstances.
In the present case, as noted earlier, the prayer for extension of time was made on behalf of the respondent No. 1 by the aforesaid application (Paper No. A-2) on 30.9.2004 within 30 days of the receipt of notice of the Election Petition on 2.9.2004, Further, the Written Statement itself was filed on 25.11.2004, i.e., within the period of 90 days as contemplated in the proviso to Rule 1 of Order 8 of the Code of Civil Procedure.
In the aforesaid application (Paper No. A-2), six weeks' time was prayed for filing Written Statement. The main reason for making the said prayer, as mentioned in the affidavit: accompanying the said application (Paper No. A-2), was that the respondent No. 1 had filed applications under Order 6, Rule 16 and Order 7, Rule 11 of the Code of Civil Procedure and application under Section 86(1) of the Representation of the People Act, 1951, and that in case, the Election Petition would be dismissed in view of the said applications, there would be no necessity for filing any Written Statement.
It appears that as the said applications filed on behalf of the respondent No. 1 under Order 6 Rule 16 and Order 7, Rule 11 of the Code of Civil Procedure and the said application under Section 86(1) of the Representation of the People Act, 1951 remained pending, the respondent No. 1 filed Written Statement on 25.11.2004. The respondent No. 1 further filed the aforesaid application (Paper No. A-11) on .12.2004, interalia, praying for accepting the said Written Statement and taking the same on record treating the same as having been filed within time.
In the affidavit accompanying the aforesaid application (Paper No. A-11) (shown at Sl. No. 2 above), the respondent No. 1 has, interalia, stated that the Written Statement was not filed earlier in view of the pendency of the said applications under Order 6, Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure and the application under Section 86(1) of the Representation of the People Act, 1951 filed on behalf of the respondent No. 1.
Having considered the facts and circumstances of the case mentioned above, and having regard to the reasons given on behalf of the respondent No. 1 for not filing the Written Statement within 3 0 days of the receipt of the notice of the Election Petition on 2.9.2004 and also having regard to the fact that the Written Statement was filed on 25.11.2004, i.e., within the period of 90 days, as contemplated in the proviso to Rule 1 of Order 8 of the Code of Civil Procedure, I am of the opinion that bonafide and sufficient cause has been made out for granting extension of time for filing Written Statement on behalf of the respondent No. 1, and it is in the interest of justice that the time for filing the Written Statement on behalf of the respondent No. 1 be extended till 25.11.2004, and the Written Statement, filed on behalf of the respondent No. 1 on 25.11.2004, be taken on record.
7. Accordingly the time for filing the (Written Statement on behalf of the respondent No. 1 is extended till 25.11.2004, and the Written Statement filed on behalf of the respondent No. 1 is directed to be taken on record.
As regards the prayer for cost made on behalf of the petitioner, I am of the opinion that in view of the fact that the petitioner did not choose to file any reply to the aforesaid application (Paper No. A-2) wherein the prayer was made on behalf of the respondent No. 1 for grant of six weeks' time for filing Written Statement, I am of the opinion that this is not a fit case for imposing any cost on the respondent No. 1 for filing the Written Statement after the expiry of the period of 30 days, as contemplated under Rule 1 of Order 8 of the Code of Civil Procedure.
The prayer made on behalf of the petitioner in this regard is accordingly, rejected.
The aforesaid applications, namely, Civil Misc. Application No. 178738 of 2004 (Paper No. A-2) (shown at Sl. No. 1 above) and Civil Misc. Application No. 218252 of 2004 (Paper No. A-11) (shown at Sl. No. 2 above) stand disposed of accordingly.
(1) Civil Misc. Application No. 178748 of 2004 (Paper No. A-4) (2) Civil Misc. Application No. 178751 of 2004 (Paper No. A-5) (3) Civil Misc. Application No. 178743 of 2004 (Paper No. A-3) Let the aforesaid applications be listed for hearing on the next date fixed in the matter.
List this case on 2.9.2005.