The central legal point established in the judgment is that the court has the discretion to allow the defendant to file a written statement even after the expiry of the specified period, and the exercise of this discretion should not result in a miscarriage of justice.

MANMOHAN SARIN, J. :- This Regular first appeal is preferred by the appellant M/s. Traco Cable Co. Ltd. against the judgment and decree dated 18-1-2007 by which the suit of the respondent-plaintiff was decreed for Rs. 3,56,000/- with costs and pendente lite and future interest @ 6% per annum. The appellant also assails the dismissal of the application, moved under Section 148 CPC, vide order dated 20-1-2007 by which the appellant had sought extension of time up to 20-12-2006 for filing of the written statement. The application had been dismissed with costs of Rs. 500./- holding the same to be not maintainable after the passing of the judgment and decree.

2. The facts culminating in passing of the judgment and decree on 18-1-2007 under Order 8, Rule 10, CPC may be briefly noted.

(i) The respondent-plaintiff had filed a suit for recovery of Rs. 3,56,000/- being Civil Suit No. 242/2006, against the appellant-defendant, who is based in Cochin. The suit was filed in August, 2006.

(ii) The respondent-plaintiff is engaged in the manufacturing and trading of LDPE Blocks Sheathing Compound/MDPE and HDPE Insulation Compound of various types. The appellant-defendant used to purchase the above items from the plaintiff-respondent. The case of the respondent-plaintiff is that the appellant-defendant used to invite tenders and the plaintiff-respondent used to deposit earnest money with the defendant for the tenders. The respondent-plaintiff instituted the above suit for the refund of earnest money amounting to Rs. 3,56,000/-, which included the interest of Rs. 1,56,000/- @ 18% per annum. The appellant-defendant was served with the summons in the suit on 5-9-2006 and was thus, required to file the written statement within 30 days from the date of service. The Court directed that as the appellant-defendant was based in Cochin, the written statement be filed on 28-10-2006. On 28-10-2006, written statement was not filed by the respondent and time was granted up to 28-11-2006 to file the same subject to costs of Rs. 500/-. On 28-11-2006, costs of Rs. 500/-were paid and an application was filed seeking further adjournment for filing written statement. The Court considering the difficulty of the counsel in arriving in Delhi, granted time to file the written statement within a period of 90 days expiring on 5-12-2006 again on payment of Rs. 500/- as costs. The Court also directed that the file be taken up for admission-denial, replication etc. on 20-12-2006.

(iii) The written statement was filed on 20-12-2006. As the Presiding Officer was on leave, Plaintiffs counsel did not receive a copy of the same. The case was put up on 23-12-2006. On 23-12-2006, an application was moved under Order 8, Rule 1 and 10 CPC by the plaintiff-respondent. It is this application, which was allowed vide the impugned order dated 18-1-2007 and the suit was decreed as noted above.

(iv) It is the appellant's case that on 3-12-2006, the clerk of appellant's counsel had gone to the Court to file the written statement on 3-12-2006. The Court clerk, it is stated, advised the clerk of appellant's counsel to file it on the date fixed after checking with the Presiding Officer. It was for this reason that the written statement, though prepared and signed by the counsel on 29-11-2006 in Cochin and sent to Delhi, could not be filed by 5-12-2006 and was tendered again on the date of the hearing, i. e. on 20-12-2006.

(v) Learned Additional District Judge disbelieved the above version of the appellant that the written statement had been tendered on the 3rd of December, 2006 through the counsel's clerk on the ground that no such plea had either been taken at the stage when written statement was placed on record on 20-12-2006 or at the stage when it was refused acceptance by counsel for the respondent/plaintiff. The trial Court also noted that no affidavit of the clerk of appellant's counsel had been placed on record and till date, no reason or cause has been shown for non-submission of