( 1 ) THE facts of this case need not detain us for long.

( 2 ) THE applicants in this revision are the plaintiffs in Original Suit No. 206 of 2001, which was filed on 5-12-2001. It is stated in paragraph 3 of the affidavit filed in support of the stay application that the notice of the suit was served upon the defendant in December 2001 and they appeared in Court on 14-1-2001. It appears that time was repeatedly granted thereafter to the defendants to file a written statement and last opportunity was granted by the trial Court on 29-4-2002 but the written statement was not filed and it was only on 4-12-2002 that an application 52-C was filed by the defendants stating that the written statement being filed be taken on record and the delay be condoned. The application was opposed by the plaintiffs. By the impugned order dated 30-1-2003 the trial Court condoned the delay and took the written statement on record on payment of costs. This order is under challenge in this revision.

( 3 ) THE Code of Civil Procedure was amended by Act No. 46 of 1999, which was to come into force on such date as the Central Government would appoint and different dates could be appointed for different provisions of the Act and for different states. Before the Act could be enforced amendments were again made by Act No. 22 of 2002 in Act No. 46 of 1999 as well as in the principal Act. The amendments made in Act No. 46 of 1999 together with the amendment made in the principal Act by Act No. 22 of 2001 were enforced with effect from 1st July, 2002.

( 4 ) THE issue in this case is about the extent to which the provisions of the amended Code of Civil Procedure would be applicable in regard the time for filing the written statement in suits, which were pending when the amendments came into force. Under the amended Order 8, Rule 1 the written statement is to be filed within 30 days from the date of service of summons. However under the proviso thereto the Court may for reasons to be recorded in writing extend the time to a date not later than 90 days from the date of service of summons. If this provision is applied to the present case the time taken in filing the written statement being more than 90 days from the date of service of summons the Court had no power to condone the delay.

( 5 ) TO appreciate the controversy reference may be made to the relevant provisions of the Act and the Rules before the aforesaid amendments were enforced. Section 27 of the Code of Civil Procedure provided for a summons to be issued to the defendant to appear and answer the claim and for service of the summons in the prescribed manner. There was no time limit for service provided in the section. Order 5, Rule 1 provided that on the institution of the suit a summons be issued to the defendant to appear and answer the claim on a day to be therein specified. Under the proviso to this Rule the Court was empowered to direct the defendant to file the written statement of his defence on the date of appearance and to cause an entry to be made to that effect in the summons. The power conferred upon the Court by the proviso was discretionary and if an entry as referred to was not made in the summons, the summons were required to indicate the date for the defendants appearance to answer the claim. The words answer the claim have been interpreted by a Division Bench of this Court in AIR 1983 All 130, State of U. P. v. Dharam Singh Mehra in the context of Order 27, Rule 5, C. P. C. wherein in reference to suits against the Government the words "to appear and answer" have been interpreted to mean not necessarily the filing of the written statement but to instructions of the Government, the defendant, to be conveyed to the Court regarding the plaintiffs claim. Order 5, Rule 5 provided that the Court shall determine at the time of issuing summons whether it shall be for the settlement of issues only or for the final disposal of the suit and the summons were required to contain a direction accor

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