SATYANARAYAN SINGH Vs. RAMNATH SINGH

JUDGEMENT

(1.) HEARD learned counsel for the petitioner. Learned counsel for the opposite party, who had earlier addressed the argument on the previous occasion, is not present in court today.

(2.) THE petitioner has come to this court against the order dated 27.12.2005 passed by the Subordinate Judge, 1st, Vaishali at Hajipur in Title Suit No. 425/ 2004, by which the petition dated 16.8.2005 to recall the order dated 18.3.2005 and further to accept the written statement filed on behalf of the defendant petitioner has been rejected.

(3.) LEARNED counsel for the petitioner in support of his contention that the provisions of Order 8 Rule 1 as recently amended are not mandatory relies upon a decision of the Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu vs. Union of India, 2005(4) PLJR (SC)270, in paragraph no. 22 of which it has been laid down as follows: "In construing this provision, support can also be had from Order VIII Rule 10 which provides that where any party from whom a written statement is required under Rule .1 or Rule 9, fails to present the same within the time permitted or fixed by the court, the court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision the court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to suit as it thinks fit. In the context of the provision despite use of the word "shall", the court has been given the discretion to pronounce or not to pronounce the judgment against the defendants even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order VIII 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 VIII the Court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90. days.provided in Order vii! Rule 1. There is no restriction in Order VIII Rule 10 that after expiry of 90. days. further time cannot be granted. The court has wide power to 'make such order in relation to the suit as it thinks fit '. Clearly, therefore, the provision of Order VIII rule 1 providing for upper limit of 90. days.to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90. days. The discretion of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII Rule 1."