The provisions of Order 8 Rule 1 are directory and not mandatory, and delay could be condoned in exceptional circumstances.

Rule. Heard finally.

This Writ Petition has been filed by the original plaintiffs under Article 226 and 227 of the Constitution of India. Facts giving rise to this petition are as follows:

The petitioner/plaintiff instituted a suit for possession, declaration, injunction and cancellation of instruments. The plaintiffs have also filed an application for temporary injunction in the said suit. Defendants after service of notice of temporary injunction application appeared before the Court and filed their reply to the application for temporary injunction application. They sought time to file Written Statement. It is the contention of the plaintiffs that after 12.12.2007 the defendants did not seek any further time to file Written Statement. They were in fact bound to file Written Statement within 90 days. They having not done so. It is the contention of the plaintiffs that the Court should have delivered the judgment under Order 8 Rule 10. Plaintiffs therefore moved an application purporting to be an application under Order 8 Rule 10. Defendants resisted the application and contended that no decree can be passed against them due on deemed admission as contended by the plaintiff. They submitted that they have vehemently contested the application for injunction. They never had intention to admit anything. They also submit that they did not file Written Statement because of the fact that they had moved an application under Section 9A of the Civil Procedure Code as well as application under Order 7 Rule 11 of the Civil Procedure Code for rejection of the plaint. It is their contention that both these applications have not been decided and as such Written Statement was not filed and this would go to show that the defendants always intended to contest the suit. Further the defendants contend that they have filed pursis adopting the reply filed to the injunction application as Written Statement and therefore there is no question of judgment being passed under Order 8 Rule 10. Learned Judge of the trial Court heard the parties and rejected the application moved by the plaintiffs to deliver the judgment under Order 8 Rule 10. Being aggrieved by that this Writ Petition is filed.

2. I have heard the learned counsel for the petitioners and the respondents. Plaintiffs/petitioners had made a prayer by filing application Ex.80 to pass a judgment under Order 8 Rule 10 since the defendants have failed to file Written Statement within 90 days. Rule 1 of Order 8 in fact contemplates defendant to file Written Statement within 30 days from the date of service of summons and proviso says that if the defendant does not file Written Statement within 30 days the Court may allow him to file it within 90 days after giving reasons. Thus it is clear that the maximum period that is allowed to the plaintiff to file Written Statement is 90 days. Consequences of not filing Written Statement within this time are given in Rule 5 and 10 of Order 8. Rule 5 says that if the defendant fails to file pleadings it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint. Rule 10 is almost similar. The plaintiffs on account of these provisions claimed that judgment should be pronounced. It is not in dispute that actually Written Statement was not filed within 90 days. Shri Pillai learned counsel for the petitioners plaintiffs submit that in the instant case defendants have admittedly failed to file Written Statement. He submits that there was no sufficient cause for not filing Written Statement within 90 days and therefore Court was in fact left with no alternative but to pronounce the judgment under Order 8 Rule 10. Learned counsel for the respondents/defendants on the other hand contends that defendants have been actually seriously contesting the suit as well as interim application. He submits that defendants have filed a pursis stating that reply to injunction application be treated as Written Statement. He contends tha