Order VIII Rule 1 CPC : Rule made by Calcutta High Court (2006)

Order VIII Rule 1 CPCCode of Civil Procedure Main Sections: Filing, Summons, Trial, Judgment, Execution, Appeal, Interim Applications, Interim Injunction, Cost, Notice Rules: Order VII. Statutory Drafting and Forms: General Pleding

State of West BengalWest Bengal Bengal derived its name from Vedic king Vanga (Son of Vali). Banga was part of the Magadha Kingdom of Jarasandha and later Nanda dynasty. After the Garuda Dynasty ( history lost) the region was named Gouda Bhumi. Districts North 24 Parganas South 24 Parganas Bankura Birbhum CoochBihar Dakshin Dinajpur Darjeeling Hooghly Howrah Jalpaiguri Jhargram Kalimpong Kolkata Malda Murshidabad Nadia Paschim Burdwan Purba Burdwan Paschim Medinipur Purba Medinipur Purulia Uttar Dinajpur Alipurduar Govt Site Calcutta High Court KMC

After the addition of the first proviso to Order VIII Rule 1 of the Code by Amending Act of 2002, the Rule Committee of the Calcutta High CourtHigh Court at Calcutta The High Court at Calcutta (High Court of Judicature at Fort William>opened on 1st July 1862, with Sir Barnes Peacock as its first Chief Justice) was established by the Letters Patent dated 14th May 1862 (High Court's Act, 1861), which provided the jurisdiction and powers of the High Court. inserted two more provisos, which needs to be noticed.

The amended provisions are quoted as under:

“1. Written statement.-The defendant shall, within thirty days from the date of service of summonsSummons It means an application to the Court in relation to an action or appeal which has to be served on other parties or non‑parties. 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 written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costsCosts Subject to any written law, costs are at the discretion of the Court, and the Court has the power to determine all issues relating to the costs of or incidental to all proceedings, including by whom and to what extent the costs are to be paid, at any stage of the proceedings or after the conclusion of the proceedings. Generally “Costs” includes charges, disbursements, expenses, fees, and remuneration. Costs in any matter are payable from the date of the order of the Court unless the parties otherwise agree. The costs of a third-party funding contract are not recoverable as part of the costs of, or costs. as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record.

Provided further that the Court can in exceptional cases extend the timeTime χρόνος. Judicial: Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”) यमः , पुं, (यमयति नियमयति जीवानां फलाफलमिति । यम् + अच् । विश्वे च कलयत्येव यः सर्व्वायुश्च सन्ततम् । अतीव दुर्निवार्य्यञ्च तं कालं प्रणमाम्यहम् ॥यमैश्च नियमैश्चैव यः करोत्यात्मसंयमम् । स चादृष्ट्वा तु मां याति परं ब्रह्म सनातनम् ॥ beyond ninety days from the date of service of summons if the defendant proves to the satisfaction of the Court that due to unforeseen circumstances he was prevented from filing the written statement within the said time.

Provided further that the Court should in no case extend such time beyond one hundred twenty days from the service of summons unless it is provedProved A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists; to the satisfaction of the Court that the defendant was prevented from filing the written statement earlier due to the circumstances beyond his control.

Inserted by Notification No. 4681-G, dated 6.12.2006, published in the KolkataKolkata Police Stations:  i. Shyampukur P.S. ii. Jorabagan P.S. iii. Burtolla P.S. iv. Burrabazar P.S. v. Posta P.S. vi. Jorasanko P.S. vii. Girish Park P.S. viii. Amherst Street P.S. ix. Hare Street P.S. x. Bowbazar P.S. xi. Muchipara P.S. xii. Taltala P.S. xiii. New Market P.S. xiv. Park Street P.S. xv. Shakespeare Sarani P.S. xvi. Hastings P.S. xvii. Maidan P.S. xviii. North Port P.S. xix. South Post P.S. xx. West Port P.S. Gazette, Extraordinary, dated 7.12.2006.”

Notes:

It is manifest from the aforesaid provision that the third proviso inserted thereto empowers the court to extend time beyond maximum limit subject to the satisfaction of the court that the defendant was prevented from filing the written statement because of the circumstances beyond his/her control.

Section 122 of the Code empowers the High CourtHigh Court High Court Judges in England and Wales handle complex and tough cases, sitting in London and traveling to court centers around the country. They preside over serious criminal and important civil cases, and support the Lord and Lady Justices in hearing appeals. High Court Judges are commonly referred to as ‘Mr/Mrs/Ms Justice surname’ and are given the prefix ‘The Honourable’. They are assigned to the King’s Bench Division, the Family Division, or the Chancery Division. The King’s Bench Division focuses on civil wrongs and judicial review, the Family Division deals with family law, and the Chancery Division handles various cases including company law and probate. Judges are appointed through a rigorous process overseen by the Judicial Appointments Commission. to make rules regulating their own procedure and the procedure on Civil Courts subject to their superintendence and may by such Rules annul, alter or add to all or any of the Rules in the first schedule. Section 123 thereof makes imperative to constitute Rule Committee consisting of the persons named therein and the report of the Rule Committee should be submitted to the High Court for consideration. Such Rules approved by the High Court requires further approval of the State GovernmentGovernment HM Govt consists of the Prime Minister, their Cabinet, and junior ministers, supported by the teams of non-political civil servants that work in government departments. The American Federal Government consists of the Legislative, Executive, and Judicial branches. and shall take effect only after its publicationPublication It includes any speech, writing, broadcast, or other communication in whatever form (including internet and social media), which is addressed to the public at large or any section of the public. in the OfficialOffice Αξίωμα > Officer > Office-bearer (1593) > Opus, officium, ex officio (Latin). Box-office (Cash Box). Gazette either from the date of the publication or from other date, as may be specified under Section 127 of the Code.

By virtueVirtue Aristotelian model: Excess Mean Deficiency >Irascibility Gentleness Spiritlessness >Rashness Courage Cowardice>Shamelessness Modesty Diffidence>Profligacy Temperance Insensitiveness>Envy Righteous Indignation Malice>Greed Justice Loss>Prodigality Liberality Meanness>Boastfulness Honesty Self-deprecation>Flattery Friendliness Surliness>Subservience Dignity Stubborness>Luxuriousness Hardness Endurance>Vanity Greatness of Spirit Smallness of Spirit>Extravagance Magnificence Shabbiness> Rascality Prudence Simpleness. of the aforementioned sections, such rules would be deemed to have been contained in the first schedule and made applicable to all the courts over which the powerPower The amount of energy transferred or converted per unit of time. In the International System of Units, the unit of it is the watt, equal to one joule per second. The capacity of energy infrastructure is rated using watts, which indicate its potential to supply or consume energy in a given period of time. A Power-plant rated at 100 MW has the potential to produce 100 MWh if it operates for one hour. of superintendence is exercised by that High Court. Another rule making power can be traced from Section 129 of the Code to regulate its own procedure in exercise of original civil jurisdictionJurisdiction Authority by which courts receive and decide cases. Limited Jurisdiction: the authority over only particular types of cases, or cases under a prescribed amount in controversy, or seeking only certain types of relief, the District Court is a court of limited jurisdiction. Original Jurisdiction: Jurisdiction of the first court to hear a case.. The mere factFact Something तथ्य (In-formation) that truly exists or happens or some-thing that has actual existence. Circumstances: a fact or event that makes a situation the way it is. Indian Evidence Act: It means and includes— (i) anything, state of things, or relation of things, capable of being perceived by the senses; (ii) any mental condition of which any person is conscious. “facts in issue” means and includes any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows. that Section 129 expressly confers power to frame rules for regulating procedure on the originsl civil side cannot lead to the conclusion that such rules can be framed under Section 122 of the Code (Shevaram v. IndianIndia Hind/ hend >hindia. Bharat Varsha (Jambudvipa used in Mahavamsha) is the name of this land mass. The people of this land are Sanatan Dharmin and they always defeated invaders. Indra (10000 yrs) was the oldest deified King of this land. Manu's jurisprudence enlitened this land. Vedas have been the civilizational literature of this land. Guiding principles of this land are : सत्यं वद । धर्मं चर । स्वाध्यायान्मा प्रमदः । The place also been called Hindusthan in Pesia. The word Hendu is mentioned in Avesta. Read more Oil CorporationCorporation A legally established entity that can enter into contracts, own assets and incur debt, as well as sue and be sued—all separately from its owner(s). The term covers both for-profit and nonprofit corporations and includes nonstock corporations, incorporated membership organizations, incorporated cooperatives, incorporated trade associations, professional corporations and, under certain circumstances, limited liability companies., AIRAIR All India Reporter 1969 Bombay 117).

In view of the aforesaid amended provisions applicable to the State of West Bengal, the court can extend time beyond the outer cap provided it is proved by the defendant that the circumstances was beyond his/her control.

In Sau. Vanita Pravin Gaikwad vs Shri Pravin Pundlik Gaikwad (AIR 2010 BOMBAY 62): Writ PetitionPetition αναφορά > παρακαλώ (Prayer) under Article 227 of the Constitution of IndiaConstitution of India भारतस्य संविधानम्: 1950 ∫ वयं भारतस्य जनाः (3) मौलिक अधिकार: (Fundamental Rights) > (4) राजनैतिकनीतेः निर्देशात्मकसिद्धान्ताः (Directive principles)> (5) The Union > (6) The States> (11) संघस्य च सम्बन्धाः राज्यम् (Union-State Relation)> (15) निर्वाचनम् (Elections)> (17) राजभाषा (Official Language) (18) आपत्कालीन प्रावधानम् (Emergency provisions) (20) संविधानसंशोधनम् (Amendment of Constitution). सप्तमी अनुसूची: (Seventh Schedule). Parliament, Supreme Court, President of India, Prime Minister of India. ∑ (Govt of India Act 1935, Manu Samhita 5000, BCE Rigveda 7000 BCE), the following question arises for consideration “whether a matrimonial petition under the Hindu Marriage ActHMA Hindu Marriage Act 1955. Conditions for a Hindu marriage (Sec-5). Void marriages (Sec-11) Restitution of conjugal rights (Sec-9). Judicial separation (Sec-10). Divorce ( Sec-13). Divorce by mutual consent (13-B). Maintenance pendente lite (Sec-24). Appeals (Sec-28). Custody of children (Sec-27). Disposal of property (Sec-27) Trial.Evidence. Family Court., 1955 (hereinafter referred to as “the said Act”) filed in the court having jurisdiction under section 19 of the said Act will be governed by the constraints of Rule 1 of Order VIII of the Code of Civil ProcedureCode of Civil Procedure Main Sections: Filing, Summons, Trial, Judgment, Execution, Appeal, Interim Applications, Interim Injunction, Cost, Notice Rules: Order VII. Statutory Drafting and Forms: General Pleding, 1908 (hereinafter referred to as “the said Code”) as amended by Code of Civil Procedure (Amendment) Act, 2002?” Held that unless application made under Section 24 of the Hindu Marriage Act was decided, the Court could not have proceeded to pass an ex-parte decree for non filing of Written Statement.

Additional written Statement: Apex Court in the case of Girnar Traders vs. State of Maharashtra & Ors. [(2007) 7 SCCSCC Supreme Court Cases 555] and the decision in the case of State of Maharashtra and Anr. vs. Sant Joginder Singh Kishan Singh & Ors. [1995 Supp. (2) SCC 475]. He submitted that as the amended provision of Rule 1 of Order VIII was applicable, the additional written statement ought to have been filed within a period of 90 days from the date on which the amended copy of the Petition was served to the petitioner.

Matrimonial MatterMatter Normal matter is made of molecules, which are themselves made of atoms. Inside the atoms, electrons are spinning around the nucleus. The nucleus is made of protons and neutrons. Inside the protons and neutrons, exist indivisible quarks, like the electrons. All matter around us is made of elementary particles. ( building blocks of matter > quarks and leptons). All stable matter in the universe is made from particles that belong to the first-generation. Fundamental forces result from the exchange of force-carrier particles, which belong to a broader group called “bosons”. The strong force is carried by the “gluon”, electromagnetic force is carried by the “photon.”: On this aspect there is one more relevant decision in the case of Vanmala w/o. Maroti Hatkar vs. Maroti Sambhaji Hatkar (1999 (2) Mh.L.J. 297). This was a case where the husband committed default in complying with the order of interim alimony and payment of expenses passed under Section 24 of the said Act. This Court held that in such a contingency, if the offending party is the petitioner, the proceedings of the Petition can be ordered to be stayed. If the offending party is respondent, then the defence of the respondent can be struck out. Thus if compliance is not made by a Petitioner with an order passed under section 24 of the said Act, the proceedings of the Petition can be stayed. Thus, the lawLaw νόμος:  Positive command of sovereign or divine. One can be ruled either by a Statute, a Statue, or a Statement. Legislation is the rule-making process by a political or religious organisation. Physics governs natural law. Logical thinking is a sign of a healthy brain function. Dharma is eternal for Sanatanis. Judiciary > Show me the face, and I will show you the law. Some people know how to bend the law rather than break it. Law Practice. Read a scholarly article laid down by this Court is that unless an application made by the respondent for grant of litigation expenses is decided, the respondent is not even expected to file written statement. If such application is decided in favour of the respondent, it is not expected of the respondent to file the written statement unless order granting litigation expenses is complied with. It is not necessary to go into the wider question whether the provisions of Order VIII of the said Code as amended in the year 2002 stand automatically incorporated in Rule 12 of the said Rules.

In a case where respondent has applied under Section 24 of the said Act for grant of litigation expenses, the said respondent cannot be compelled to file a written statement unless an order is passed on the said application. If an order is passed in favour of the respondent directing the petitioner to pay litigation expenses, the respondent is expected to file written statement only after the amount is paid to the respondent.