A court cannot deprive a defendant of the statutory right to file a written statement by striking it off improperly, even if filed beyond the conventional timeline.

ORDER (Oral)

1. The petitioner is defendant in CS 375/17 (Pankaj Singh Rajput v. R.M. Green Solutions Pvt Ltd.) presently pending before the learned Additional District Judge (the learned ADJ). The right of the petitioners to file written statement by way of response to the suit instituted by the respondent was struck off by the learned ADJ vide order dated 14th September 2017. An application, by the petitioners, under Order VIII Rule 1¹ of the Code of Civil Procedure, 1908 (CPC), read with Section 5 of the Limitation Act, 1963, for recalling of the said order dated 14th September 2017, was also dismissed by the learned ADJ on 26th April 2019.

2. Both the orders are under challenge in the present petition, instituted under Article 227 of the Constitution of India.

3. Inasmuch as the issue in question is only the right of the petitioners to file written statement, it is not necessary to refer to the details of the dispute between the parties.

4. Petitioners 1 and 2, as Defendants 1 and 2 in the suit, were served with summons, in the suit, on 7th July 2017. Petitioner 3, as Defendant 3 in the suit, was served on 21st July 2017.

5. On 14th September 2017, the learned ADJ, noting that no written statement had been filed by the petitioners till that date, struck off the petitioners' right to file written statement.

6. The petitioners moved an application on 13th November 2017 under Order VIII Rule 1 of the CPC read with Section 5 of the Limitation Act. The application was accompanied by a written statement, purportedly by way of response to the suit instituted by the respondent. The application prayed that the order dated 14th September 2017 supra be recalled and the written statement be taken on record.

7. The said application stands rejected by the learned ADJ vide order dated 26th April 2019. In rejecting the application, the learned ADJ has observed that there was no satisfactory explanation for the petitioners not filing the written statement within 30 days of receipt of service of summons. The learned ADJ has further faulted the petitioners for having consulted their counsel only in the last week of October 2017. The learned ADJ has also noted that no written statement had been filed by the petitioners even within 90 days of receipt of summons. On a conjoint consideration of these factors, the learned ADJ has rejected the petitioner's application.

8. As already noted, the petitioner has, by the present petition under Article 227 of the Constitution of India, assailed the aforesaid orders dated 14th September 2017 and 26th April 2019, passed by the learned ADJ.

9. The first issue that arises for consideration is whether the learned ADJ was justified in striking off the defence of the petitioners on 14th September 2017.

10. I have heard Mr. Amit Wadhwa for the petitioner and Mr. S.K. Vashishtha learned Counsel for the respondent.

Analysis

11. Order VIII Rule 1 of the CPC envisages filing of a written statement within 30 days of service of summons in a suit. The proviso to Order VIII Rule 1, which applies in the event of failure, on the part of the defendant, to file written statement within 30 days, mandatorily requires the learned Trial Court to allow the written statement to be filed on such other date as may be specified by the Court, for reasons to be recorded in writing. Such extension cannot, however, continue beyond 90 days from the date of service of summons.

12. The closure of the right of the petitioner to file written statement, in the present case, has effectively reduced the proviso to Order VIII Rule 1 of the CPC to a redundancy.

13. In this context, it is also necessary to refer to Order VIII Rule 10 of the CPC, which reads thus:

"10. Procedure when party falls to present written statement called for by Court.--Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, th