Anil Handa vs Ashok Kumar

Satish Kumar Mittal, J.—Defendant Anil Handa has filed this petition under Article 227 of the Constitution of India for setting aside the order dated 17.5.2005, passed by the trial court, whereby his defence has been struck off on account of non-filing of written statement within three months, as provided under Order 8 Rule 1 of the CPC (hereinafter referred to as ''the Code'').

The plaintiff filed suit under Order 37 of the Code for recovery of Rs. 1,20,400/-on the basis of cheque. The defendant was granted leave to defend the suit on 17.2.2005 and the case was fixed for 1.4.2005 for filing written statement. However, the written statement was not filed on that date and thereafter, three more opportunities were granted to the defendant to file written statement on 25.4.2005, 14.5.2005 and 17.5.2005, but he did not file written statement, which led to passing of the impugned order.

The plea taken by the petitioner is that during the aforesaid period, his real sister remained seriously ill, who subsequently died on 19.6.2005. He remained busy for her treatment, therefore written statement could not be filed within 90 days. The request of the petitioner for further time was also not accepted.

Counsel for the petitioner, while relying upon a decision of this Court in State of Haryana and Others Vs. Karamjit Singh and Others, , submits that the provision of Order 8 Rule 1 of the Code is directory and not mandatory in nature. He further submits that the rules and procedure are handmaid of justice to enhance the sane and not to subvert it. Learned Counsel submits that only one opportunity may be granted to the petitioner-defendant to file written statement, subject to payment of costs.

After hearing the arguments of learned Counsel for the parties and going through the impugned order, I am of the opinion that the trial court has failed to exercise its jurisdiction while passing the impugned order. It is well settled that the court has the power and jurisdiction to grant permission to the defendant to file written statement even beyond the period of 90 days. The Hon''ble Apex Court in Kailash Vs. Nanhku and Others, ; Smt. Rani Kusum Vs. Smt. Kanchan Devi and Others, and in Shaikh Salim Haji Abdul Khayumsab v. Kumar and Ors. 2005(4) R.C.R. 823 has held that the provisions of Order 8 Rule 1 of the Code are not mandatory but are directory. Order 8 Rule 1 of the Code provides that the defendant shall, within thirty days from the date of service of summons, may file the written statement of his defence. However, the proviso to this Rule further provides that if the defendant does not file the written statement within the said period of thirty days, he shall be permitted to file the same on such other days, 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. While interpreting the aforesaid provision, in Shaikh Salim Haji Abdul Khaumsab''s case (supra), the Hon''ble Apex Court has held that the Court can permit the defendant to file the written statement even beyond 90, days. This provision does not specifically take away the power of the: Court to take the written statement on record if filed after 90 days.

In this case, the petitioner, while stating that he remained busy in getting treated his ailing sister till her death on 19.6.2005, has shown sufficient reasons for delay in filing written statement. I do not find the instant case as a case of laxity or gross negligence and any deliberate delaying tactics being adopted by the petitioner-defendant.

In view of the aforesaid facts and circumstances, this petition is allowed, the impugned order dated 17.5.2005 is set aside and the petitioner-defendant is granted one opportunity to file written statement subject to payment of Rs. 1,000/- as costs.