The main legal point established in the judgment is that the provisions of Order VIII Rule 1 CPC are procedural and not mandatory, and in non-commercial suits, the court has the power to condone the delay to ensure a party is not denied the opportunity to be heard.

JUDGMENT

Jyoti Singh, J. (Oral)--Present revision petition has been filed by the Petitioners assailing the impugned order dated 31.01.2023, whereby the Trial Court has closed the right of the Petitioners to file the written statement. Petitioners herein are Defendants before the Trial Court and Respondent is the Plaintiff.

2. Respondent herein filed a suit for eviction, permanent and mandatory injunction before the Trial Court with respect to property bearing No.4428-30, 2nd Floor, Ward No.3, Ganesh Bazaar, Vishnu Bazaar and Dau Bazaar, Delhi. Summons were issued in the suit on 19.10.2022 returnable on 31.01.2023. On 02.12.2022, Petitioners were served with summons and copy of the plaint for appearance on 31.01.2023. When the matter was listed on 31.01.2023, Trial Court closed the right of the Petitioners to file written statement since the statutory period of 30 days prescribed in Order VIII Rule 1 CPC for filing written statement from date of service of summons i.e. 02.12.2022, had expired.

3. Counsel for Petitioners submits that Petitioners were served with the summons on 02.12.2022, however, Petitioners were unable to discern from the reading of the summons as to what steps they were required to take and decided to consult a lawyer. It took Petitioners some time to engage a lawyer and finally, Petitioners were able to engage the present lawyers on 30.01.2023 and briefed them in the matter. Since the matter was listed on the next day i.e. 31.01.2023, counsel for Petitioners requested for some time to file the written statement as the lawyers had been recently engaged and in any case, the delay was within the period of 90 days available under Order VIII Rule 1 CPC, within which the Court has a discretion to condone the delay albeit on payment of costs. It is, therefore, submitted that the impugned order be set aside and Petitioners be permitted to file written statement, failing which grave prejudice would be caused to them and the suit would be decided against them without any opportunity to defend. It is also submitted that Petitioners are willing to pay costs if the time for filing written statement is granted.

4. Learned counsel for Respondent, appearing on the advance copy of the petition, opposes the petition and submits that there is no reason forthcoming in the revision petition to explain why the written statement could not be filed on or before 31.01.2023, when Petitioners were admittedly served on 02.12.2022 and therefore, the petition deserves to be dismissed.

5. I have heard learned counsels for the parties and examined their contentions.

6. It is an admitted position between the parties that the suit out of which the present revision petition arises is a non-commercial suit and the timelines for filing written statement are provided under Order VIII Rule 1 CPC. Order VIII Rule 1 provides a period of 30 days to a Defendant to file written statement from the date of service of summons. Proviso to Order VIII Rule 1 CPC provides that where the Defendant fails to file written statement within the said period of 30 days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs, as the Court deems fit, which shall not be later than 120 days from the date of service of summons. The provision came up for consideration before the Supreme Court in Kailash v. Nanhku and Others, (2005) 4 SCC 480, where the Supreme Court held that the provisions of Order VIII Rule 1 CPC are procedural and not a part of substantive law. Though the object is to curb the mischief of Defendants adopting dilatory tactics to delay disposal of cases, however, in an adversarial system normally and ordinarily, a party should not be denied opportunity of participating in justice dispensation process. It was also held that merely because a provision is couched in a negative language, it is not without exception and no provision of a proc