State of H.P. vs Kewal Krishan

Rajiv Sharma, J.—This petition is directed against the order dated 10.6.2013 passed by the Civil Judge (Junior Division)-II, Dharamshala in Civil Suit No. 60/2012.

Pertinent facts necessary for the adjudication of this petition are that respondent-plaintiff (hereinafter referred to as the "plaintiff" for convenience sake) has filed a Civil Suit No. 60/2012 before the learned Civil Judge (Junior Division)-II, Dharamshala for declaration. It is evident from the record that petitioner-defendant (hereinafter referred to as the "defendant" for convenience sake) has not filed the written statement. Defendant filed an application u/s 148 of the Code of Civil Procedure. It was allowed by the Civil Judge (Junior Division). The case was fixed for 10.6.2013 for filing written statement. It is evident from order dated 10.6.2013 that written statement was not filed despite the defendant had put in appearance on 30.5.2012. Defendant had been seeking adjournments on different grounds. Defendant had been granted sufficient opportunities to file the written statement. It is in these circumstances, learned Civil Judge (Junior Division) has rightly struck off defence of defendant.

Their Lordships of the Hon''ble Supreme Court in Kailash Vs. Nanhku and Others, have held that there is no absolute embargo on court''s power to extend the period to file written statement, but the extension of time, however, is to be granted only for exceptional circumstances. Their Lordships have held as under:

45 (iv) The purpose of providing the time schedule for filing the written statement under Order 8 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 8 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 8 Rule 1 CPC is not completely taken away.

Their Lordships of the Hon''ble Supreme Court have reiterated the principles laid down in Kailash Vs. Nanhku and Others, in Sandeep Thapar Vs. SME Technologies Private Limited, as under:

The application of the appellant for seeking extension in time for filing the written statement has been rejected with the observation that that Order VIII Rule 1 CPC is mandatory and the Court cannot permit filing of a written statement beyond the 30 days from the date of service of summons. At best, the Court has power to permit a period of further 60 days from the date of service of summons upon the defendant to file the written statement. But this has to be done for reasons to be recorded in writing. Since the appellant herein has filed the application beyond the period of 30 days + 60 days, it was not permissible for the Court to allow the appellant to file the written statement.

Learned counsel for the appellant has submitted that undoubtedly the limit under Order VIII rule 1 has to be observed, but in exceptional circumstances in order to ensure that the injustice is not done, the Court will have the power to permit the defendant to file the written statement.

It was incumbent upon the defendant to file written statement within prescribed period after putting in appearance on 30.5.2012.

Accordingly, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. No costs.