S.B. CIVIL WRIT PETITION No. 11188 of 2011 · Rajasthan High Court

: 8th December, 2011 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. S.S. Sharma, counsel for the petitioners- defendants BY THE COURT: Challenge in this writ petition is to the order dated 31.3.2011, whereby the learned Additional District Judge (Fast Track) No.2,

Sikar, Headquarter Sri Madhopur dismissed the application of the petitioners-defendants imploring the court to take the written statement of defence on record.

Having reflected over the submissions made at the bar and carefully scanned the relevant material on record including the impugned orders, it is noticed that Order 8 Rule 1 CPC envisages that the defendant shall submit the written statement of his defence within 30 days from the date of service of summons on him. A bare perusal of the language of order 8 Rule 1 suggests that the defendant is expected and required to file the written 2 statement of his defence within 30 days of the service of summons only but not later than ninety days for the reasons to be recorded by the court. The object behind substituting Order VIII Rule 1 of Civil Procedure Code in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court, faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness, which is a basic element of justice cannot be permitted to be buried.

In the case of Kailash Versus Nanhku and others reported in 2005 (4) SCC 480, the Hon'ble Apex Court observed as under:

the provisions spells a disability on the defendant: a careful reading of the language in which Order 8 Rule 1 has been drafted, shows that it casts an obligation on the defendant written statement within 30 days from the date of service of summons on him and 3 within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Though the language of the proviso to Rule 1 Order 8 CPC is couched in the negative form, it does not specify any penal consequences flowing from the non-compliance; however, consequences of non-compliance may be read in by necessary implication. The provision being in the domain of the procedural law and considering the object and purpose behind enacting Rule 1 of Order 8 in the present form and the context in which the provision is placed, it has to be held to be directory and not mandatory. Moreover, under Order 8 Rule 9, in spite of the time limit appointed by Order 8 Rule 1 having expired, the court is not powerless permit a written statement being filed if the court may require such written statement.

The Hon'ble Apex Court has further held that: “however, the fact that Order 8 Rule 1 CPC has been held to be directory may not be misunderstood as nullifying the entire force and impact – the entire life and vigour – of the provision”.

Adverting to the facts of the instant case, learned trial court dismissed the 4 application of the petitioners-defendants observing that the application was filed with a view to procrastinate the trial of the suit. The impugned order passed by the learned trial court is found to be just and apt. Undeniably and undisputably, the learned trial court granted ample opportunity to the defendants to file the written statement of defence, but the defendants reflecting their carelessness and negligent attitude, did not file the written statement even in four years. Hence, there was no opinion left before the learned trial court, but to close the right of the petitioners-defendants to file the written sttaement. The impugnd order is found to be just and proper and suffers from no infirmity, but keeping in view the pronouncements made by the Hon'ble Apex Court from time to time, I deem fit to direct the learned trial court to take the written statement of defence on record as the same is stated to have already been filed in the court but with the exemplary cost of Rs. 10,000/-, to be paid by the petitioners-defendants plaintiff- respondents.

Consequently, the writ petition is allowed and the order 31.3.2011 passed by the 5 learned trial court is set-aside. The learned trial court is directed to take the written statement of defence filed by the petitioners- defendants on record, subject to payment of cost of Rs. 10,000/-, to be paid to the plaintiff-respondents. It is made clear that the written statement of defence of the petitioners-defendants shall be taken on record by the learned trial court only after the payment of cost of Rs. 10,000/- is made to the plaintiff-respondents.

Consequent upon the disposal of writ petition, application, therewith, does not survive and that also