important point
Provisions of Order VIII, rule 1 including the proviso are not mandatory but directory.

judgment

Harjit Singh Bedi, J. —

1.Leave granted.

2.In spite of due service, no one has entered appearance on behalf of the respondents. Even at the time of hearing of this appeal, the respondents had failed to appear to contest the appeal.

3.This appeal is directed against the judgment and order dated 11th of October, 2006 passed by a learned Judge of the High Court of Judicature at Bombay, Nagpur Bench in Writ Petition No.4019 of 2006 by which the learned Judge had dismissed the writ petition filed by the appellant for condoning the delay of 35 days in filing the written statement in a suit for partition and separate possession of agricultural land filed by the respondents.

4.We have heard the learned counsel appearing for the appellant and also examined the impugned order of the High Court as well as of the trial court and also the application for acceptance of the written statement, which was filed out of time.

5.Having heard the learned counsel for the appellant and after considering the materials on record, we are of the view that in the facts and circumstances of the present case, the High Court ought to have condoned the delay in filing the written statement under Order 8 Rule 1 of the Code of Civil Procedure (in short “the CPC”), even if some delay was caused in filing the same. The appellant was the defendant in the suit for partition and separate possession of agricultural land falling under Gat No.243 admeasuring 0.50 H.R. situated at Village Mouza Kojai and house No.139 situated at Village Gaijapur, Maharashtra (herein after referred to as the ‘suit properties’). The plaintiffs/respondent Nos. 1 to 5 have also sought for a declaration to the effect that a Will dated 6th of June, 2003 executed in favour of the respondent No.6 (petitioner No. 2 in the High Court) was illegal, null and void and also for permanent injunction restraining the appellant from making any construction over the open land falling in house No.139. A perusal of the record would show that the respondents in the pending suit moved an application for grant of temporary injunction against the appellant. By an order dated 29th of April, 2005, the Civil Judge, Junior Division, Nagbhid granted temporary injunction in favour of the respondents. Feeling aggrieved, the appellant has preferred a misc. civil appeal before the District Judge, Chandrapur and the same is now pending decision. The appellant under bonafide belief and on instruction of his counsel in the trial court could not file the written statement as he was advised by his counsel that the written statement could be filed after the decision of the appeal pending before the district court. However, when advised by his counsel, the appellant filed an application for accepting the written statement on condonation of delay. The learned Civil Judge, Junior Division, Nagbhid rejected the said application for condoning the delay and refused to permit the appellant to file the written statement in view of the proviso to Order 8 Rule 1 of the CPC. A review petition was filed which was also rejected by an one line order. It is against this order a writ petition was moved before the High Court, which was also dismissed. Before we look into the provisions under Order 8 Rule 1 of the CPC, we need to record that the learned counsel appearing for the appellant contended before us that the provisions for filing the written statement under Order 8 Rule 1 of the CPC are directory in nature and therefore, it was open to the court to condone the delay in filing the written statement and such written statement filed by the appellant could be accepted. Before we consider whether the provisions under Order 8 Rule 1 of the CPC are mandatory or directory in nature, we need to consider the provisions under Order 8 Rule 1 of the CPC which run as under: -

“The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence :

Provided that where the defendant fails to