Basant Kumar Keshari Vs. Vinod Kumar Keshari and ors.

- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. orderr.k. merathia, j.1. this writ petition is filed for quashing the order dated 27.2.2008 and also the order dated 19.6.2007 passed by the sub-judge i, garhwa in partition suit no. 20 of 2006 refusing to accept the written statement filed by the petitioner on 20.6.2007.2. mr. v.p. singh, learned senior counsel appearing for the petitioner submitted that time for filing written statement was granted upto 19.6.2007, but the same could be filed on 20.6.2007 and therefore, the same should have been accepted.3. mr. jai prakash, learned counsel appearing on behalf of the respondents supported the impugned orders and submitted that the petitioner received summons in the month of november 2006, but he chose to file vakalatnama after six months. time for filing written statement was granted by way of last chance up to 19.6.2007 and accordingly, on 19.6.2007 order was passed debarring him from filing written statement and therefore, filing of written statement on the next date i.e., 20.6.2007 was of no consequence. he further submitted that issues were framed on 27.6.2007 and evidence started on 19.7.2007. he further submitted that false statements were made by the petitioner in the petition before the court below.4. after hearing the parties and perusing the records, it appears that the petitioner has been trying to delay the disposal of the suit. however, i am inclined to give one chance to the petitioner in the interest of justice.5. accordingly, the impugned orders dated 27.2.2008 and 19.6.2007 are set aside and the written statement filed by the petitioner on 20.6.2007 is accepted. the trial court will now frame issues afresh and proceed with the suit. however, this order is subject to deposit of cost of rs. 2500/- in the court below within two weeks from the opening of the civil court, which the other side will be entitled to withdraw.6. with the above observations and directions, this writ petition is disposed of.