Mulkh Raj @APPELLANT@Hash Vias Rak And Ors.

The instant revision petition has been filed by the petitioner against the order dated 12th May, 2010 passed by the learned Sub-Judge, Kathua, by

virtue of which written statement filed on behalf of respondents/defendant Nos.2 to 7 on 08.04.2010 has been taken on record much after the time

limit prescribed under Order 8 Rule 1 of the CPC.

Learned counsel for the petitioner in the instant petition has challenged the order dated 12.05.2010, on the grounds that the said impugned order

passed by the learned Sub Judge, Kathua is contrary to the provisions of Order 8 Rule 1 of the Code of Civil Procedure, because the written

statement has to be filed within a period of 30 days from the date of service of summons. It is averred in the petition that such written statement has

not been filed within time. However, defendants/respondents herein sought for extension of time beyond 30 days for filing the written statement and

the same could have been allowed by the learned Trial Court only for the reasons to be recorded in writing, but in any case no written statement could

have been filed after the expiry of 90 days. It is averred in the petition that even after the expiry of 90 days written statement has been filed and the

same has been taken on record.

In the petition it is averred that the judgment relied upon in the impugned order dated 12.05.2010 has not been properly appreciated by the Court

below, thus the aforesaid impugned order runs contrary to the provisions of Order VIII Rule 1 of the Code of Civil Procedure.Â

Considered the submissions of learned counsel for the petitioner. Order VIII Rule 1 CPC reads as under:-

“1. Written statement.-The defendant shall within thirty days from the date of service of summons 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 same on such

other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of

service of summons.â€​

From the bare perusal of photo-copy of the interim order dated 21.08.2009, it is evident that the petitioner â€"Mulkh Raj filed a suit for declaration

to the effect that will deed dated 27.09.2005 registered with Sub-Registrar, Kathua in respect of land measuring 5 Marls with house constructed

therein falling under Khasra No. 505, 384, 66, measuring one Kanal 09 Marlas falling under Khasra No. 383/66 be declared as null and void.Â

On 12.05.2010, the Court below has taken on record the written statement filed by the defendants/respondents herein after 90 days.

While considering this aspect of the case, I must point out that Order VIII, Rule 1 as well as Order VIII, Rule 10 of the Code, which warrants filing

of writtenstatement within a period of 90days from the date of service of summons on the defendant, are part of the procedural law. The procedural

law is handmade justice and cannot override the necessity to do justice between the parties to the suit. No part of the procedural law and not even

Order VIII, Rule 1 or Order VIII, Rule 10 can, in the absence of any explicit legislative intendment, be treated to have disempowered the court or can

be said to stand in the way of the court to make exception in an appropriate case and accept a writtenstatement beyond the period of 90days. The

purpose of providing the time schedule for filing the written statement under Order VIII Rule 1 CPC is to expedite and not to scuttle the hearing. The

provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though the language of

the proviso to Rule 1 Order VIII CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The

provision being in the domain of the procedural law, it has to be held directory and not mandatory. The power of the Court to extend time for filing the

written statement beyond the time schedule provided by Order VIII Rule 1 CPC is not completely taken away.

In Smt. Rani Kusum v. Smt. Kanchan Devi (2005) 5 SCC 705, it is held as under:-

“(v) Though Order VIII Rule 1 CPC is a part of procedural law and hence directory, keeping in view the need for expeditious trial of civil cases

which persuaded Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be

followed as a rule and departure there from would be by way of exception. A prayer for extension of time made by the defendant shall not be granted

just as a matter of routine and merely for the asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an

exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the court on its being satisfied.

Extension of time may be allowed if it is needed to be given for circumstances which are exceptional, occasioned by reasons beyond the control of the

defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the

grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case.""Â

In present case, as is evident from order impugned, trial court has exercised its jurisdiction judicially in entertaining the written statement, which was

already on file. So it does not suffer from any infirmity of law. This petition is dismissed accordingly.