TEEJO DEVI Vs. PARKASH RANI

JUDGEMENT

(1.) THIS revision petition has been filed by the tenant- petitioner against the order dated 16.7.2005 passed by the learned Rent Controller, Amritsar whereby the written statement filed by the respondent has been held to be time-barred as it was filed after a period of 90 days. Accordingly, the defence of the tenant-petitioner was struck-off which is assailed in this petition.

(2.) THE landlady-respondent on 26.9.2003 filed an application seeking ejectment of the tenant-petitioner from the premises in dispute. Notice was issued in the said ejectment petition by the learned Rent Controller for 13.1.2004 for which date the petitioner was served, however, the presiding officer was on leave. Accordingly, the case was taken up on the next day i.e. 14.1.2004. The tenant-petitioner appeared through his counsel on 14.1.2004 and tendered the rent claimed, which was accepted by the respondent under protest. The case was then adjourned to 18.3.2004 on which date, the Presiding Officer was on leave and the case was adjourned to 20.5.2994 for filing reply to the petition. On the said date i.e. 20.5.2004, the case was again adjourned to 28.9.2004 for filing reply. The tenant-petitioner filed his written statement on 28.9.2004. On the same day i.e. 28.9.2004, the landlady-respondent filed an application under Order 8 Rule 1 of the Code of Civil Procedure (CPC for short) for striking off the defence of the tenant-petitioner on the ground that the written-statement had not been filed within a period of 90 days. The case was then adjourned to 26.10.2004. Ultimately, the Rent Controller passed the impugned order dated 16.7.2005 and ordered striking off the defence of the tenant-petitioner on the ground that the written statement had not been filed within 90 days as fixed in terms of the provisions of Order 8 Rule 1 CPC. The said order as already noticed is assailed in this petition.

(3.) I have given my thoughtful consideration to the contentions of the learned counsel appearing for the petitioner. Learned counsel for the petitioner has stated that the written statement in the case was filed on 28.9.2004 on which date, the landlady also filed the application under Order 8 Rule 1 CPC for striking off the defence of the tenant-petitioner. It is not in dispute that the written statement is already on record. Learned Rent Controller has after referring to the provisions of Order 8 Rule 1 CPC, held that the petitioner appeared on 13.1.2004 and had filed the written statement on 28.9.2004. As such, the written statement was filed beyond the period of limitation. However, it has been held by the Supreme Court in Kailash v. Nankhu (supra) that no straitjacket formula can be laid down except that the observance of time schedule contemplated by Order 8 Rule 1 shall be the rule and departure therefrom an exception, made for satisfactory reasons only. In any case, it was held that the provisions of Order 8, Rule 1 CPC though couched in mandatory form, is directory being a provision in the domain of procedural law. Accordingly, it was observed that the purpose of providing time schedule for filing the written statement under Order 8 Rule 1 CPC is to expedite and not to scuttle the hearing. The provision, it was observed, spells out a disability on the defendant and it does not impose an embargo on the power of the Court to extend the time. It was further observed that though the language of the proviso to Rule 1 or Order 8 CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of procedural law, it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedules provided by Order 8 Rule 1 CPC is not completely taken away. Besides, in Salem Advocates case (supra), it was observed that in construing the provisions of Order 8 Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order 8, the Court in its discretion would have power to allow the defendant to file written statement even after expiry of the period of 90 days provided in Order 8 Rule 1. There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to make such order in relation to the suit as it thinks fit. Besides, it was held that the provisions of Order 8 Rule 1 providing for upper limit of 90 days to file written statement is directory.