The Court emphasized the mandatory nature of the limitation given in Rule 1 of Order 8 CPC and the need for the Court to exercise judicial discretion in allowing extensions of time for filing the written statement.

Prakash Tatia, J.-Heard learned Counsel for the petitioner.

2. The petitioner/plaintiff says that the delay with which he has raised objection is immaterial and the delay which was committed by the respondent/defendant in contesting the suit is more material to the extent that the defendant may be deprived from raising of the defence in a civil suit.

3. This has happened because of the fact that as per Rule 1 of Order 8 CPC, the defendant is required to file written statement within thirty days from the date of service of summons on him. Proviso to Rule 1 of Order 8 CPC provides that in case, the defendant fails to file the written statement within thirty days period from service of summons upon him, he can be allowed to file the written statement only upto the period of ninety days that too from the date of service of summons only. That is not enough but for that purpose, the defendant is required to satisfy the Court by showing reasons for not filing the written statement within thirty days as provided under Rule 1 of Order 8 CPC.

4. In this case, the relevant dates are that the defendant was served with summons on 21.04.2004, therefore, he could have submitted written statement by 21.05.2004. He did not file the written statement by 21.05.2004. The suit proceedings continued without any adverse order against the defendant upto 29.07.2004 and on 29.07.2004, the defendant submitted written statement. By that time, even period of ninety days also expired within which the defendant could have submitted the written statement. It will be worthwhile to mention here that the plaintiff , without whose presence, the suit could not have proceeded did not raise any objection about not filing of the written statement by the defendant even when the defendant did not submit the written statement in thirty days and thereafter, in ninety days. Not only this but the plaintiff did not objected to Courts adjourning case for filing the written statement beyond the entire period of 90 days for specific purpose of filing written statement. Be it as it may be, without any objection of the plaintiff and without there being any objection from the Court, when the case was fixed for filing written statement on 29.07.2004, the defendant submitted the written statement on 29.07.2004 in the Court and that was taken on record.

5. The plaintiff , who wanted to take benefit of the amended provisions of CPC providing for speedy disposal of the suits and disposal of the suit in time frame, remained a silent spectator, obviously so that he may have a march over the defendant as timely objection by the plaintiff against adjourning the case for filing written statement would not have placed the plaintiff in advantageous position to which he wants to reach. As stated above, the period of ninety days expired. Not only this, but when the written statement was filed on 29.07.2004, no objection was raised by the plaintiff . The plaintiff raised objection against taking written statement on record after about 14 days i.e., on 22.08.2004.

6. According to learned Counsel for the petitioner, the limitation given in Rule 1 of Order 8 CPC is mandatory and even the Court has no jurisdiction to extend the period of limitation without recording any reason for allowing the defendant to file written statement beyond the period of thirty days.

7. Learned Counsel for the petitioner also submitted that the Honble Apex Court in the case of Kailash vs. Nanhku & Ors., reported in 2005 (4) SCC 480 held that a prayer seeking time beyond 90 days for filing the written statement ought to be made in writing. Upon which only, the Court can exercise judicial discretion on well settled principles and the Court may put the defendant on terms including imposition of compensatory costs and may also insist for an affidavit, medical certificate or other documentary evidence (depending on the facts and circumstances of a given case) being annexed with the application seeking extension of