JUDGMENT S. Harkauli, J.
1. Notice of this election petition was served upon the first respondent who is the returned candidate admitedly in the last week of June 2002, as is clear from the contents of an application (A-8) filed on 4.7.2002 by the said returned candidate seeking six weeks time to file a written statement. By order dated 4.7.2002 the Court granted one month and nomore time to the respondent No. 1 for filing the written statement.
2. The written statement is said to have been verified on 25.9.2002 but its copy was not served upon the election petitioner till 23.1.2003 and the written statement was filed in the Court on 23.1.2003.
3. Learned Counsel for the election petitioner has submited that the written statement should not be accpeted on record in view of the provision of Order VIII Rule 1 C.P.C. as amended by the Code of Civil Procedure (Amendment) Act, 2002. Section 9(1) of that Amendment Act has amended Order VII Rule 1 CPC with effect from 1.7.2002.
4. For ready reference the said amended provision is reproduced below.
"4. Written statement. The defendant shall, within thirty days from the date of service of summnos 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."
5. The respondent No. 1 has moved an application dated 31.3.2003 being Misc. Application No. 60603 of 2003 (paper no A-10) purporting to be under Section 151 CPC praying that the delay in filing written statement be condoned and the written statement be accepted.
"Two questions arise in respect of the preliminary arguments made today. They are as follows:
1. Whether the Court can permitting of a written statement beyond the period of 90 days from the date of service of summons in violation of Order VIII Rule 1 as it is stands today by exercising inherent power under Section 151 CPC; and
2. Whether the delay in filing written statement beyond that maximum period prescribed under Order VIII Rule 1 CPC can be condoned under any other provison of law.
6. So far as the first contention is concerend, although Section 151 CPC 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 in this context, following authorities may be seen-
1. AIR 1972 Mad, 167 (169) DB
2. AIR 1987 Bom. 1 (2).
3. AIR 1984 Cal. 228 (229)
4. AIR 1969 Audh Pav. 216 (220)
7. In these circumstances after the amendment of Order VIII Rule 1 CPC 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 peiod beyond that 90 days cannot be over-ridden by resort to Section 151 CPC.
8. As already stated the service of notices was enacted in the last week of June, 2002, the period of 90 days therefore ran out in the last week of Sept. 2002. The submission that written statement may have been verified before expiry of that 90 days, even it correct, is irrelevant. The provisions of Order VIM Rule 1 requires filing of written statement and not verification of the time within the prescribed time. The written statement was filed as stated above in January 2003 beyond the maximum period of 90 days prescribed and therefore written statement cannot be taken on record in view of the bar contained under Order VIII Rule 1 CPC.
9. This bring us to the second question as to whether in a case where written statement is actually filed beyond the prescribed period of 90 days, the Court can condone delay in filing written statement and take the same on record under any other provision of law. 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.
10. Sri R.K. Jain, Sr. Advocate representating the respondent No. 1 has submitted that Order VIII Rule 10 C.P.C. as amended by the samE Amendment Act, 2002 does not mandate the Court to necessarily pronounce the judgment against the defendant who has failed to file written statement within the prescribed time but says that instead of pronouncng judgment against such defendant, the Court may make such order in relation to the suit as it things fit. According to Sri Jain these words indicates that the Court has power to condone the delay and enlarge time forf filing written statement beyond maximum period of 90 days and to take written statement on record.
11. I find myself unable to agree with this kind of submission, as it would defeat the entiere purpose of amendment carried out in the CPC. The amendment is intended to prevent misuse by unscrupulous defendant of repeatedly taking adjournment, seeking time and adopting dilatory tactics to the determinent of the plaintiff.
12. The words which have been referred by Sri Jain in Order VIII Rule 10, to my mind, have been placed in the States to cover a case where even on the admitted plaint allegation, the judgmnt cannot be pronounced against a particular defendant because of some legal bar or lack of essential pleading giving a complete cause of action.
13. The words relied upon by Sri Jain cannot be interpreted so as to set at naught the obvious clause brought about under Order VIII Rule 1 by Amending Act, 2002.
14. The decision of Karnataka High Court in the case of Smt. Savitha Gupta v. Smt. Nagaratha reported in AIR 2003 Karnataka 426 has also taken similar view.
15. In these circumstances, I am of the view that application seeking condonation of delay deserves to be rejected and written staement deserves to be struck off the record having been filed beyond the maximum prescribed period Order accordingly.
16. List on 26.3.2004 for arguments on the question whether the petition should be allowed or not under the provision of Order VIII Rule 10 CPC.