Devendra Pratap Singh, J. - (1.) HEARD counsel for the parties. The petitioner, an old lady, filed a suit No. 137 of 1999 for partition and possession of house No. 76/1 to 76/8 and 84/1 to 84/5 situated in Mohalla Subheshpura in Lalitpur Town. In spite of service of notice, defendants did not file their written statement but instead defendant No. 2 made an application under Order VII, Rules 14 and 15, C.P.C. that the petitioner -plaintiff may be directed to file relevant documents with regard to her title to enable them to file their written statement. She prayed for and was granted time to file objection. Another application was made by defendant No. 3 under Order VII, Rule 11 for rejection of the plaint. Both these applications were rejected by an order dated 18.7.2003 whereafter the defendant Nos. 2 and 3 filed their written statement on 16.8.2003. The petitioner also moved an application under Order VIII, Rule 1 stating that the written statement be not accepted as it was filed beyond the period of 90 days. Learned Civil Judge rejected the application of the petitioner vide order dated 19.1.2004 and a revision against the same was also dismissed vide order dated 2.8.2004. Both these orders are under challenge in the present petition. Learned Counsel for the petitioner has urged that after amendment of 2002 which became effective from 1.7.2002, it was incumbent upon the defendants respondents to have filed written statement within 90 days and once it was filed beyond the said period, it could not have been accepted. In support of his contention, he has relied upon the decision of this Court rendered in the case of Nanda Agrawal v. Matri Mandir, Varanasi and another : 2004 (2) ARC 598 and the case of Nanku v. Kailash and others, 2004 (2) ARC 779.
(2.) IN my opinion, though the ratio laid down in the aforesaid decision of this Court cannot be doubted but it would not apply to the facts of the present case. In both those cases the suit was filed after the enforcement of the amended provisions of C.P.C. and the question raised therein was whether the Court had power to extend the time in exercise of its extraordinary power under sections 148 and 151, C.P.C. In both the decisions it has been held that once the period has been prescribed in the main provisions, recourse to the residuary provisions cannot be taken. Learned Counsel for the respondent has urged that his application under Order VII, Rules 14 and 15 were pending and after its rejection on 18.7.2003 they immediately filed their written statement within 30 days on 16.8.2003, thus even applying the amended provisions, the written statement was filed within time prescribed. He has relied upon a decision of another Single Judge of this Court rendered in the case of Waqf Mausooma Syed Hussin and Mst. Begum and another v. Dillep Kumar Jain and others : 2003 (51) ALR 424. The facts of the case of Waqf Mausooma Syed Hussin (Supra) are somewhat similar but in my view, the ratio would not apply in the present case also.
(3.) UNDER Order VII, Rules 14 and 15 the defendants have a right of seeking full particulars from the plaintiff to enable him to file his effective defence and until and unless the said application is decided, it cannot be said that the time prescribed for filing the written statement has expired. The right of filing of an effective written statement cannot be abridged and the defendants cannot be forced to file a formal written statement without their full defence and be expected to file additional written statement once the full particulars as required under Order VII, Rules 14 and 15 is given. No doubt the object of the amendment to Order VIII is sacrosanct but it cannot be at the cost of the defense. In a given case, if the Court finds that the application under Order VII, Rules 14 and 15 is mala fide or mischievous and made only for the purposes to delay the trial, it has full authority to pass order for filing of the written statement in spite of the pendency of the application under Order VII, Rules 14 and 15 and in which case if the written statement is not filed, the Court would be within its right to disentitle the defendant from filing his written statement. Such a view would do justice between both the parties in a given case. In the case at hand, the written statement has been admitted after imposition of cost, thus, the equities can be said to be balanced.;