LALA RAM Vs. DAMODAR PRASAD KHANDELWAL

JUDGEMENT

(1.) The present writ petition has been filed against the order dated 31.07.2012, passed by the Additional District & Session Judge No.9. Jaipur Metropolitan. By the said order, the learned Judge has dismissed an application under Order 8 Rule I read with Sec. 148 Code of Civil Procedure filed by the petitioner-defendant (hereinafter the defendant) and disallowed the defendant to file written statement to the suit for specific performance on the ground that not only the written statement was filed beyond the period of 90 days from the service of summons on the defendant, but also that the reasons for delay in filing the written statement was not supported by any material evidence on record.

(2.) Counsel for the defendant has submitted that the Honourable Supreme Court in the case of Salem Advocate Bar Association, T.N. Vs. Union of India, 2005(2) Apex Court Judgments 492 (S.C.) : 2005(3) Civil Court Cases 420 (S.C.) : 2005(6) SCC 344 has held that the provisions of Order 8 Rule I Code of Civil Procedure are only directory in nature. He submits that albeit, ordinarily the written statement to the suit ought to be tiled within a period prescribed under Order 8 Rule I Civil Procedure Code', yet in situations beyond the control of the defendant, if such written statement is not filed within 90 days, the courts still have the discretion in the interest of justice to allow the application for tiling the written statement belatedly and take the written statement on record. Counsel submits that in the instant case, the application under Order 8 Rule 1 Code of Civil Procedure was filed on the next (late immediately following the order dated 05.1 4.2012 when the defendant&% right to tile written statement was closed by the trial court. It is submitted that the granddaughter of the defendant was involved in an accident owing to which the written statement could be filed within time. It is further submitted that in the event the written statement were not to be taken on record by the trial court in a suit for specific performance, the defendant would face a grave irreparable loss. The further submission is that the delay is not unconscionable and for the short delay of mere 30 days beyond the prescribed period of 90 days for filing written statement, the respondent -plaintiff (herein after the plaintiff) can be compensated in terms of costs.

(3.) Mr.P.C.Shah, appearing for the plaintiff, would submit that the defendant appeared before the trial court on 05.01.201 _2 and thereafter sought time for filing written statement from time to time. He submits that the defendant not having tiled the written statement within a period of 90 days and thereafter not having advanced any cogent reasons with supporting material before the trial court in his application explaining reasons for the delay beyond his control in filing the written statement. the trial court has acted in Accordance with the intent of the provision of Order 8 Rule I Code of Civil Procedure and rightly dismissed the application for taking on record the written statement tiled about 120 days subsequent to service of summons on the defendant. Counsel submits that the intendment of Parliament as reflected in the amendment to Order 8 Rule I Code of Civil Procedure is to expedite civil proceedings and the intendment of the Parliament should not be casually circumvented on the mere askance of the defendant now before this Court.