NIRMAL SINGH Vs. TARA

JUDGEMENT

(1.) Trial Court has struck off the defence of the petitioner as he failed to file written statement within a period of 90 days from the date of service of summons on him.

(2.) Learned Counsel relies upon A.V. Purushotam v. N.K. Nagaraj, 2003 AIR(Kar) 417 in support of his contention that Rule 1 of Order 8 CPC, which requires filing of written statement within 90 days from the date of service of summons, is only directory in nature. As such, he contends, the trial Court should not have struck off petitioner's defence due to default on his part to file written statement within the stipulated period of 90 days. Thus judgment, it may be stated, does not help the petitioner, since it only clarifies that the court has the power to receive written statement even after expiry of the period stipulated in Order 8 Rule 1 CPC and this provision does not render the court powerless. Of course, there cannot be any dispute within this proposition of law. But, it is also to be understood that if court finds that there was no reasonable excuse for delay in the filing of written statement beyond the stipulated period, defendant cannot, as a matter of right, insist that his written statement should be taken on record. Filing of written statement within the stipulated period is the rule, while receiving written statement beyond the stipulated period is only an exception. It is the discretion of the Court to exercise the discretion to receive the written statement beyond the stipulated time, but this discretion is not unbridled. It has to be exercised judiciously. No defendant can, as a matter of right, insist that even after expiry of the period prescribed under law, his written statement must be taken on record.

(3.) In the case in hand, the petitioner was earlier proceeded ex parte. The Court, however, set aside the ex parte proceedings on 22.4.2004 and adjourned the case for filing written statement. But, even thereafter, he chose not to file written statement upto 28.7.2004 i.e. after expiry of more than 90 days from the date when the ex parte proceedings were set aside. Under Order 8 Rule 1 CPC, he had a right to file written statement within 30 days from the date of service of summons. This 30 days' time, in his case, could at the most, be counted from the date on which ex parte proceedings were set aside against him, and on his request, if made; court had the power to extend time, for reasons to be recorded in writing, by another 60 days. But, he neither filed written statement within 30 days nor applied to the court, at any stage, for extension of time. That being so, the court had rightly refused to permit him to file written statement after the expiry of 90 days period from the date of setting aside ex parte proceedings against him.