CHINTAMAN SUKHDEO KAKLIJ Vs. SHIVAJI BHAUSAHEB GADHE

JUDGEMENT

(1.) DIVERGENT opinions expressed by two learned single Judges of this Court have necessitated the present reference to a larger bench to resolve the conflict as regards the true and correct interpretation of order 8 rule 1 of the Civil Procedure Code ( CPC for short ). The question ' that falls for consideration is whether the court can permit filing of written statement beyond the period of 90 days stipulated under Order 8 rule 1 of the CPC. The reference arises in following manner.

(2.) IN Prabhakar v. Bhagwan Mitharam,vagyani J. held that by virtue of recent amendment to the CPC by Act 22 of 2002, there is no alternative for the defendant to file written statement within 30 days from the date of service of suit summons and by virtue of proviso to rule 1, Order 8 of the cpc, the written statement can be allowed to be filed on such other day for reason to be recorded in writing, but in any case not later than 90 days from the date of service of suit summons. Rule 1, Order 8 of CPC is mandatory in nature and it requires strict compliance. The time cannot be extended under order 8, rule 9 of the CPC as filing of written statement is governed exclusively by Order 8, rule 1 and on failure to file written statement within 90 days under amended rule 1, Order 8, the right to file written statement is lost and the defendant cannot bank upon rule 9 Order 8 of the CPC to wipa out his default, Vagyani J. relied upon the decision of the Division Bench in indium India Tele. Ltd v. Motorola Inc. .

(3.) AS against this in Shailaja v. Sayajirao,, Bhosale J, took a view that the provisions of Order 8, rule 1, CPC as amended by Act 22 of 2002 are directory in nature, Rule 10 of Order 8, CPC governs both situations where " the written statement is required under rule 1 Order 8 as also where it has been demanded under Rule 9. In both situations if a written statement has not been filed by the defendant, it will be open for the court to pronounce the judgment against him or make such order in relation to the suit as it thinks fit under Rule 10, Order 8. If a written statement is not filed, the court is required to pronounce the judgment against him. This also gives discretion either to pronounce the judgment or "make such order in relation to the suit as it thinks fit". In other words, it is open for the court to allow the defendant to file a written statement even at that stage. Rules 9 and 10 of Order 8 give discretion to the trial court to allow the defendant to file a written statement at any stage prior to the pronouncement of the "judgment.