2011 Supreme(Raj) 2783
RAJASTHAN HIGH COURT
Mahesh Bhagwati, J.
Tikam & Ors. - Appellant
Versus
Jagdish & Ors. - Respondent
S.B.Civil Writ Petition No. 2331 of 2006.
Decided On : 9-12-2011
For the Petitioner:N.K. Singhal, Advocate.
For the Respondent:Ishwar Jain, Advocate.
Headnote:Civil Procedure Code, 1908, Order 8, Rule 1 – The present matter relates to delayed filing of written statement – it was observed by the trial court that for 270 days, no reasonable explanation was given for not filing the written statement – the High Court upheld the order of the trial court observing that it doesn’t contain any infirmity – nevertheless, considering that there was no progress in the suit for the past 8 years due to stay on the further proceedings of the suit, the petitioner was allowed to file the written statement on the payment of cost to the tune of Rs. 5000/ – the Court held that Order 8 Rule 1 Civil Procedure Code is directory in nature but it cannot be comprehended as nullifying the entire force, impact and the vigour of the provision.
"the provisions spells out a disability on the defendant: a careful reading of the language in which Order 8, Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Though the language of the proviso to Rule 1 Order 8 Civil Procedure Code is couched in the negative form, it does not specify any penal consequences flowing from the non-compliance; however, the consequences of non-compliance may be read in by necessary implication. The provision being in the domain of the procedural law and considering the object and purpose behind enacting Rule 1 Order 8 in the present form and the context in which the provision is placed, it has to be held to be directory and not mandatory. Moreover, under Order 8, Rule 9 , in spite of the time limit appointed by Order 8, Rule 1 having expired, the court is not powerless to permit a written statement being filed if the court may require such written statement. The Hon'ble Apex Court has further held that:
"however, the fact that Order 8, Rule 1 Civil Procedure Code has been held to be directory may not be misunderstood as nullifying the entire force and impact the entire life and vigour of the provision."