Grievance of the petitioners is that the Trial Court has refused to take written statement on the ground that the same has not been filed within thirty days from the date summons were received. Power to grant extension of time vests with the Court which cannot be extended beyond period of 90 days. Petitioners appeared on 9.3.2004 and they were required to file written statement within thirty days, however, they are said to have filed written statement on 18.10.2004 and their application has been rejected by the learned Trial Court solely on the ground that the petitioners have admitted that they have filed written statement beyond period of 90 days. The plea taken by the petitioners is that the time starts running from the date summons were received by the petitioners. However, petitioners had filed a caveat application which date cannot be construed for the purpose of filing the written statement.
The short submission of the petitioners is that the provision of Order VIII Rule 1 of the Code of Civil Procedure 1908 are not mandatory but directory in nature. Proviso to Order VIII Rule 1 provides the courts power to grant extension but not beyond 90 days. However, the rule does not indicate as to what consequences flow from the non extension of time. Courts have power to grant extension beyond period of 90 days. Filing of written statement is matter of procedure.Intended purpose of the provision is to expedite the hearing in the matter but not to scuttle the same. The very purpose of the procedural law is to sub serve the ends of justices and not to override the same. If the provision is to be construed strictly than it can lead to miscarriage of justice. There may be instances where the defendants for unavoidable reasons is not able to file his written statement. In such eventuality by operation of law the right to file written statement will be closed. The intend and purpose of the rule by its mere language cannot obliterate the dispensation of justice. It is in this context this provision has to be treated as directory and not mandatory. However, this will not clothe the Court's power to extend the time for filing written statement for unspecified period. If there is no good cause to extend the time same shall be refused. Reliance has been placed on the judgement of Hon'ble Apex Court in Rani Kusum Vs Kanchan Devi and others reported in 2005 SAR (Civil) 694 in which in paragraph 11 it has been held that:-
"All the rules of procedure are the handmaid of justice. The language employed by the draftsman of procedural law may be liberal or stringent, but the act remains that the object of prescribing procedure it to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice."
In the circumstances of the case, the writ petition is allowed. The impugned orders are hereby quashed. Trial Court is directed to accept the written statement filed by the petitioners. Petitioners are directed to file his written statement by or before 5.12.2011 before the Trial Court. In case they do not file the written statement by or before 5.12.2011 their right shall stand closed.
Order Date :- 8.11.2011 RKS/