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Smt. Savitri Devi v. Jagdeesh Sharma - WRIT - C No. - 54474 of 2007 [2007] RD-AH 17375 (2 November 2007)

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Court No.6

Civil Misc Writ Petition No.54474 of 2007

Smt. Savitri Devi


Jagdeesh Sharma


Hon. Dilip Gupta, J.

The plaintiff of Original Suit No.54 of 2004 has filed this petition for setting aside the order dated 18th January, 2007 passed by the learned Additional Civil Judge (Junior Division), Court No.13, Azamgarh by which the written statement has been accepted on payment of cost of Rs.200/-. The petitioner has also sought the quashing of the order dated 26th July, 2007 by which the revision filed against the said order was dismissed by the learned District Judge, Azamgarh.

Original Suit had been filed for permanent injunction. An application (50-C) was moved by the plaintiff with a prayer that opportunity to file the written statement be closed as the defendant had not filed the written statement within the prescribed period. Subsequently, the defendant filed a written statement (63-Ka) along with an application (71-Ka) for condonation of delay in filing the written statement. The Court has condoned the delay in filing the written statement and has accepted the same on payment of cost of Rs.200/-. The Revision filed against the said order has also been dismissed.

Order VIII Rule 1 of the Code of Civil Procedure as amended by Amendment Act, 2002 is as follows :-

"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."

The Supreme Court in Kailash Vs. Nanhku & Ors., 2005 AIR SCW 2346 summed up the conclusions in paragraph 45 as follows :-

"(iii) The purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1 of 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 of Order VIII of the 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 of the CPC is not completely taken away.

iv) Though Order VIII, Rule 1 of the CPC is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the 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 therefrom 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 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 was needed to be given for the 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."

The aforesaid decision of the Supreme Court was followed in M/s. R.N. Jadi and Brothers & Ors. Vs. Subhashchandra, 2007 AIR SCW 4568.

In the instant case, the Courts below, have in their discretion, condoned the delay in filing the written statement on payment of cost of Rs.200/-. In view of the aforesaid decisions of the Supreme Court, the orders do not call for any interference under Article 226 of the Constitution.

The Writ Petition is, accordingly, dismissed.

Date: 2.11.2007



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