Anjani Kumar, J. - (1.) HEARD learned Counsel appearing on behalf of the parties. By means of present writ petition under Article 226 of the Constitution of India, the petitioner -tenant challenges the order dated 26th April, 2004, passed by the Revisional Court in Revision No. 40 of 2003 as well as order dated 28th July, 2003 passed by the Trial Court in SCC Suit No. 15 of 2002, copies whereof are annexed as Annexure Nos. '5' and '4', respectively to the writ petition.
(2.) THE facts giving rise to the present writ petition are that the respondent -landlord (plaintiff in the suit) filed a SCC Suit on 7th January, 2002 before the Trial Court against the tenant -petitioner (defendant in the suit) for arrears of rent and ejectment against the petitioner -tenant. It is apparent on the record that the service of summons were made by publication and on 20th August, 2002, the defendant put in appearance before the Trial Court and prayed for the copy of the plaint. Thereupon, the Trial Court directed the plaintiff to supply the copy of the plaint within three days and granted one month's time to file written statement to the defendant. As explained in the memo of writ petition that the defendant could not file written statement within the time granted by the Trial Court. On 22nd September, 2002, the defendant -tenant fell ill and could not contact his Counsel and that is why he could not file written statement. Again on 16th October, 2002, 22nd October, 2002, 20th January, 2003, 20th March, 2003 and on 12th May, 2003 dates were fixed, but according to the plaint allegation, Court could not take up the matter, nor any written statement was filed by the tenant -petitioner. On 28th July, 2003, the tenant -petitioner filed his written statement along with an application to accept the same on record. The respondent -landlord filed an objection that in view of the amended provision of Order VIII, Rule 1 of the Code of Civil Procedure, since more than ninety days have passed, the written statement cannot be accepted by the Trial Court and the application for accepting the written statement is liable to be rejected. The Trial Court vide its order dated 28th July, 2003 rejected the application filed by the tenant -petitioner for accepting the written statement on the ground that the provisions of Order VIII, Rule 1 of the Code of Civil Procedure, as amended in the year 1999, is mandatory and after the expiry of period of ninety days, the Trial Court has no power to extend the time for filing the written statement. Aggrieved thereby, the petitioner -defendant preferred a revision before the Revisional Court. The Revisional Court approved the reasonings given by the Trial Court and dismissed the revision, thus this writ petition.
(3.) LEARNED Counsel appearing on behalf of the tenant -petitioner argued that in view of the decision of the Apex Court in Kailash v. Nanhku and others : 2005 (29) AIC 95 (SC) : 2005 (1) ARC 861, the view taken by the Revisional Court as well as by the Trial Court in rejecting the application filed with the prayer to accept the written statement, deserves to be quashed, as both the Courts below have rejected the application for accepting the written statement only on the ground that the provisions of Order VIII, Rule 1 of the Code of Civil Procedure, as amended in the year 1999 being mandatory, the Court do not have any power to enlarge/extend the time of filing the written statement beyond ninety days from the date of service of summons. In view of the law laid down by the Apex Court in the case of Kailash (supra) and this Court in the case of Masroor Ali v. Court of In -charge District Judge/Additional District fudge, Court No. 1, Kanpur Nagar and others, passed in Civil Misc. Writ Petition No. 25816 of 2005, decided on 19th May, 2005, the arguments advanced on behalf of learned Counsel for the tenant -petitioner deserves to be accepted.;