Vinod Kumar vs District & Sessions Judge, Ghaziabad and Another

Anjani Kumar, J.—By means of present writ petition under Article 226 of the Constitution of India, the petitionertenant calls in question the order passed by the Trial Court dated 23rd March, 2005, copy whereof is annexed as Annexure No.5 to the writ petition, whereby the Trial Court has rejected the application 15C filed by the petitionertenant for extension of time in filling the written statement.

The Trial Court while rejecting the aforesaid application 15C has relied upon the decision of this Court in Nanda Agrawal (Dr.) v. Matri Mandir Varanasi and another, 2004 (2) ARC 598, wherein this Court has held that �in view of the amended provisions of Order VIII, Rule 1 of the Code of Civil Procedure, the Court cannot extend the time for filing the written statement beyond ninety (90) days from the date of service of notice and since in the present case more than ninety days have elapsed after the service of the notice upon the defendant, therefore in view of the law laid down by this Court in the case of Nanda Agrawal (Dr.) (supra), the application 15C filed by the petitionerdefendant is liable to be rejected and is rejected.�

Heard learned Counsel appearing on behalf of the parties.

Learned Counsel appearing on behalf of the petitionertenant in support of his contention relying upon the latest decision of the Apex Court in Kailash v. Nanhku and Others, 2005 (29) AIC 95 (SC): 2005 (23) LCD 1110, has submitted that �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.�

The Apex Court in the case of Kailash (supra), referred to above, has ruled, which reads thus:

�Ordinarily, the time schedule prescribed by Order VIII, Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the Court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for asking more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the Court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order VIII, Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required the interest of justice and grave injustice would be occasioned the time was not extended.

However, no straitjacket formula can be laid down except that the observance of time schedule contemplated by Order VIII, Rule 1 shall be the rule and departure therefrom an exception, made for satisfactory reasons only. We hold that Order VIII, Rule 1. Though couched in mandatory form, is directory being a provision in the domain of processual law.�

Having heard learned Counsel for the parties and having gone through the law laid down by the Apex Court in the case of Kailash (supra), referred to above, this writ petition deserves to be allowed.

In view of what has been stated above, this writ petition succeeds and is allowed. The order dated 23rd March, 2005, passed by the Trial Court rejecting the application 15C filed by the petitionertenant is quashed. The matter is remanded back to the Trial Court with the direction to decide the same afresh in the light of the observations made in the case of Kailash (supra) and in accordance with law after affording opportunity to the parties concerned. Sicne the matter is old, the Trial Court is directed to decide the same within a period of six weeks'' from the date of presentation of a certified copy of this order before it.

(Petition allowed)