- (1.) Heard Sri V. Singh alongwith Sri A.B. Maurya, learned counsel for the petitioners. On 12.8.2013, following order was passed by this Court. Through this writ petition, the petitioners have prayed for issuing a writ of certiorari quashing the orders dated 13.2.2013 and 1.2.2013 passed by the District Judge, Varanasi and Prescribed Authority/Additional Civil Judge (S.D.), Varanasi respectively vide order dated 1.2.2013, the petitioners' application seeking adjournment for filing written statement has been rejected, whereas by the subsequent order dated 13.2.2013, the petitioners' revision challenging the order dated 1.2.2013 has been dismissed by the learned District Judge, holding it as not maintainable. Heard Sri Virendra Singh, learned counsel for the petitioners. It appears, an impleadment application was filed by the other side for impleading the present petitioners in case No. 2 of 1997 (Smt. Chandrawati v. Rajendra Prasad) pending before the 4th Additional Judge (S.D.), Varanasi. The said application was allowed on 30.7.2010 where after, the present petitioner was impleaded as opposite party No. 4 and for the first time, after service of notice, she appeared on 20.12.2012, on which date some additional papers were supplied to the petitioner No. 1 and the date was fixed for 10.1.2013. On 10.1.2013, an adjournment was sought by the petitioner No. 1, which was accepted after imposing cost of Rs. 100/- with the rider that in case the written statement is not filed upto 1.2.2013, the opportunity of filing written statement will cease. On 1.2.2013, another application was filed by the petitioner (the opposite party No. 4). The said application was rejected taking note of the facts that earlier on many occasions, i.e., on 4.1.2012, 19.1.2012, 16.2.2012, 21.2.2012, 18.8.2012, 4.10.2012, 1.12.2012, 10.1.2012, adjournments have already been sought and the case, being very old one, no further adjournment shall be granted. The application of the applicant, seeking time to file written statement was rejected by the learned Prescribed Authority on the said date. Aggrieved by that order, the petitioner No. 1 (herein) has filed revision No. 47 of 2013, which has been dismissed by the learned District Judge, holding that the revision is not maintainable being against the interlocutory order. Learned counsel for the petitioners submits that in view of Rule 1 of Order VIII of the Code of Civil Procedure, the written statement can be filed within 90 days from the date of service of summons. In his submissions, since the petitioner No. 1 has appeared before the Court on 20.12.2012, therefore, she could file written statement till 19.3.2013. Therefore, the learned Judge has erred in rejecting the petitioner's application seeking adjournment for granting time for filing written statement. He has also submitted that the learned Judge had noted the dates and the adjournments sought by the other petitioners, which is not related to the petitioner No. 1 as the petitioner No. 1, for the first time, has appeared before the Court on 20.12.2012 and has sought adjournment on 10.1.2013 and 1.2.2013. On being confronted as to in between Order VIII, Rule 1 and Section 148 of the Civil Procedure Code which would prevail and further, what is the date of service of summons, learned counsel for the petitioners sought time to apprise the Court the date of service of the summons. As prayed, put up this case on 16.8.2013 in the additional cause list. Learned counsel for the petitioners submits that in view of the availability of the specific provision for filing written statement, general provisions contained under Section 148 of the Code of Civil Procedure will not prevail. It may be noticed that under Order VIII Rule 1 C.P.C. written statement has to be filed within a period of 30 days from the date of receipt of summons and on the discretion of the Court, the time can be extended by the Court but not later than 90 days whereas under Section 148 C.P.C. time cannot be extended beyond 30 days.
(2.) Considering the facts and circumstances of the case and pendency of the release application since 1997, this writ petition is taken up for final disposal without issuing notice to the respondents with the liberty to them to seek recall of the order which is going to be passed today, if the other side feels aggrieved.
(3.) It is not in dispute that the petitioners appeared for the first time before the Court on 20.12.2012 after service of notice, on which date some additional papers were supplied to the petitioners and date was fixed for 10.1.2013. On 10.1.2013, an adjournment was sought by the petitioner No. 1 which was accepted after imposing cost of Rs. 100/- with the rider that in case, the written statement is not filed upto 1.2.2013, the opportunity of filing written statement will be closed. The attention has been invited towards the provisions contained under Order VIII Rule 1 of the Code of Civil Procedure which is reproduced herein under: 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 form the date of service of summons.;