- (1.) K. M. Dayal, J. The present first appeal has been filed by the State of Uttar Pradesh and another against the judgment and decree dated 24-11-1980, passed by Sri U. P. S. Kushwaha, Civil Judge, Nainital, in Suit No. 41 of 1980. Dharam Singh the plaintiff respondent filed a suit for recovery of Rs. 1,30,000/- against the appellants on 14-8-1980. The suit was ordered to be registered after Munsarim's report and summonses were issued to the defendants under O. V, Rule 1 of Civil P. C. fixing 23-9-1980 for filing Written Statement and 30-9-1980, for settlement of issues. On 23-9-1980, an application, 19-D, was moved by the District Government Counsel, (Civil), on behalf of the State of Uttar Pradesh, praying four months' time to file the written statement. The defendant's application was partly allowed on payment of Rs. 10/- as costs. He was directed to file the written statement by 3-11-1980. On 3-11-1980 again an application 21-D was filed by the defendant's counsel for time to file written statement. No. specific period was mentioned in the application but it was mentioned that the written statement had been prepared and sent to the Legal Remembrancer for his approval. The plaintiff's counsel made the following endorsement on that application. "twenty days time may be granted for filing written statement to which I have no objection. "
(2.) FROM the order-sheet it appears that 24-11-1980 was fixed for filing written statement as well as for settlement of issues. On 24-11-1980 when the case was called, counsel for the parties were present. Another application 22-D was moved on behalf of the State Government for time to file the written statement. It was opposed on the ground that the State cannot be granted more than two months' time under O. XXVII Rule 5 of Civil P. C. The following order was passed by the Civil Judge. "case called out. Counsel for the parties are present. 22-D by State of U. P. for time to file W. S. opposed. According to the provisions of Order 27 R. 5 C. P. C. the State can be granted time not exceeding two months to answer the plaintiff. Two months' time has already been given. This Court is not now empowered to grant further time. Rejected. Sd/- U. P. S. Kushwaha". After rejecting the application the Civil Judge pronounced the judgment decreeing the suit of the plaintiff against the defendant under Order VIII Rule 10 of Civil P. C. which is hereinafter referred to as the Code. It appears from the judgment that the defendant was directed to file its written statement by 24-11-1980. No written statement was filed within the time permitted by the Court and consequently the judgment ought to be pronounced against them under Order VIII Rule 10 of the Code. The Civil Judge further observed that prior to the filing of the suit a notice under S. 80 of the. Code has been served upon defendant as alleged in the plaint The defendant did not give any reply. Consequently it was a fit case to pronounce judgment against the defendant. No documents were examined nor any oral evidence recorded. The Court below did not apply its mind to the facts of the case or whether the plaintiff could be entitled to a decree even if the allegations made in the plaint were accepted. The decree has been passed, merely on the default of the defendant in filing its written statement within the time granted by the court. We have heard the learned counsel for the parties at length. The learned Standing Counsel has raised two points before us. His first contention is that Order XXVII Rule 5 of the Code did not debar the Court from granting more than two months' time to Government for filing Written Statement. His second contention is that the Court below was not justified in pronouncing judgment under Order VIII R. 10 of the Code. Both the contentions have been vehemently repelled by the learned counsel for the plaintiff- respondent. The argument of the learned counsel for the respondent was that the Court has no jurisdiction to grant more than two months time to Government for filing Written statement and that the judgment could be pronounced against defendant on his failure to file Written Statement on the date fixed.
(3.) THE following points arise in this appeal:- 1. Whether the Court had jurisdiction to extend the time for filing the Written statement beyond two months permitted by Order XXVII Rule 5 of the Code ? 2. Whether the Court below was justified in pronouncing judgment against the defendant under Order VIII Rule 10 of the Code? POINT No. 1 :- Whether the court had jurisdiction to extend the time for filing the Written statement beyond two months permitted by O. XXVII Rule 5 of the Code ? Rules 4 and 5 of O. XXVII are as under:- "4. Agent for Government to receive process:- THE Government pleader in any Court shall be the agent of the Government for the purpose of receiving processes against the Government issued by such Court. 5. Fixing of day for appearance on behalf of Government :- THE Court, in fixing the day for the Government to answer to the plaint, shall allow a reasonable time for necessary communication with the Government through the proper channel, and for the issue of instructions to the Government pleader to appear and answer on behalf of the Government and may extend the time at its discretion (but the time so extended shall not exceed two months in the aggregate ). " Under Order XXVII, Rule 4 of the Code the District Government Counsel is the agent of the Government for the purpose of receiving process against the Government issued by the Court. The Government pleader is authorised to accept notice of the suit issued by the Court in a case against the Government. The next step thereafter is to contact the authorities concerned and seek necessary instructions from the Government to appear and answer on its behalf. After the Government pleader accepts the notice he cannot admit or deny the liability without consulting the Government. In Government matters the Government pleader is merely an agent. He has no personal interest, knowledge or information about the matter in dispute. He is bound to seek instructions from the department concerned about the claim of the plaintiff. Order XXVII Rule 5 has been framed for that purpose. In case of private parties the notice is ordinarily served on them directly and they are in a position to file the written statement by the date fixed in the summons. But that is not so in the case of suits against the Government. The District Government Counsel cannot have any knowledge about the controversy and consequently it has been provided in Order XXVII, Rule 5 that the Court in fixing a day for the Government to answer to the plaint shall allow a reasonable time for the necessary communication with the Government through the proper channel and for the issue of instructions to the Government pleader to appear and answer on behalf of the Government. The discretion of the Court has been fettered by an amendment in the Code made by Act No. 104 of 1976: that the time under the Rule could not be extended beyond two months. That only means that the Government counsel could be granted two months' time at the maximum for communicating and seeking instructions from the Government through proper Channel and it necessary answer the plaint.;