Poonam Srivastava, J. - (1.) Heard Sri Atul Dayal, learned Counsel appearing for the petitioner, Sri K.S. Rathore, and Sri Piyush Mishra, Counsels for the caveator/respondent. On agreement between the respective Counsel, the instant writ petition is being decided at the stage of admission itself under Rules of the High Court.
(2.) The respondent No. 2 instituted a Case No. 501 of 2000 in the Family Court, Allahabad under Guardian and Wards Act for custody of his minor child. Initially, the case was dismissed in default on 19.4.2001 but subsequently it was restored. The case was directed to proceed ex parte against the defendant, but no sooner did the petitioner come to know about the aforesaid order than he moved an application to recall the order directing to proceed ex parte. The recall application was allowed on 16.5.2005. Rest of the defendants did not appear to file any recall application. The present petitioner could file his written statement subsequent to the order dated 16.5.2005 when already an order was passed by the Court to proceed ex parte. An application was filed on 30.9.2005 seeking time to file written statement, no objection was filed to the said application but the Court rejected the application 29-Ga on 30.9.2005. The written statement was filed alongwith said application 30-Ga and also an affidavit 32-Ga with a prayer that he is prepared to pay previous cost and the written statement may be taken on record. The Court rejected the application on 9.11.2005. Submission on behalf of the petitioner is that the case was filed in the year 2000 and amended C.P.C. came into existence subsequent to the institution of the case. Therefore, in the present case, saving clause will become operative and his written statement could not be refused on the ground that ti was filed beyond the period of ninety days. It has categorically been held by this Court as well as by the Apex Court that amended C.P.C. and Order VIII, Rule 1, C.P.C. will not be made applicable to the pending suit and as such impugned order is illegal. However, assuming that provision of Order VIII, Rule 1, C.P.C. is applicable even in the pending suits. The Apex Court has ruled in 2005 (1) ARC 61 : 2005 SCFBRC 248, Kailash v. Nanku and others, that provision of Order VIII, Rule 1, C.P.C. is not mandatory but directory.
(3.) After hearing Counsel for the respective parties, I am of the considered view that the Court below should have accepted the written statement as reasons given for the delay in his affidavit appears to be sufficient. The impugned orders appears to have been passed mechanically. In the circumstances, the order passed by the Court below dated 9.11.2005 in matrimonial Case No. 501 of 2000 is quashed. The writ petition is allowed.;