Hon'ble VYAS, J.—In this writ petition the petitioner has prayed for quashing order dated 21.2.2011, Annex. 7 which is passed upon application filed under Section 148, CPC and prayed that application filed under Section 148, CPC may be allowed and written-statement may be ordered to be taken on record.

2. Learned counsel for the petitioner submits that although suit was filed against the defendant-petitioner in the year 2001, service of summons issued to him was effected upon him and his counsel appeared on 25.9.2001 and filed power on behalf of the defendant-petitioner. But, thereafter, time and again, for other reasons, the matter remained pending, therefore, due to said reason written-statement was not filed within the time limit prescribed; but, in the interest of justice, now, written-statement filed by the defendant petitioner may be ordered to be taken on record.

3. In support of his contention, learned counsel for the petitioner invited my attention towards judgment of the Hon'ble Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu vs. Union of India, reported in 2005(2) WLC (SC) Civil 242, in which, it has been held by the Apex Court that Provisions of Order 8 Rule 1 are directory in nature and not mandatory, therefore, prayer of the petitioner may be accepted and Trial Court may be directed to take the written statement on record.

4. After hearing learned counsel for the petitioner, I have perused the order impugned. Learned Trial Court rejected the application on the ground that after amendment in the year 2002 in the Code of Civil Procedure, reply was to be filed within 30 days from the date of service and, further, reply was to be accepted after recording reasons within 90 days. But, after service on 25.9.2001, no reply has been filed and, now, at this belated stage, an application was filed for taking written statement on record on 14.7.2008.

5. It is true that an amendment was made in the Code of Civil Procedure in the year 2002 and following amendment was made under Order 8 Rule 1, CPC.,

"1. Written statement.-The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence.

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons."

Upon perusal of the above provision, it is obvious that after amendment, defendant is required to file written-statement within 30 days from the date of service of summons and, further, it is provided that where the defendant fails to file written-statement within the said period of 30 days he shall be allowed to file the same on such other day as may be specified by the Court for the reasons to be recorded in writing but which shall not be later than ninety days from the date of service of summons.

6. Further, as per Section 148 of the Code of Civil Procedure, written-statement can be accepted by the Trial Court while enlarging the time but, in that provision also, it is specifically provided that where the period is fixed or granted by the Court for doing of any act, prescribed or allowed by this Code, the Court may in its discretion, from time to time, enlarge such period (not exceeding 30 days in total) even though the period originally fixed or granted may have expired.

7. It is true that Hon'ble Supreme Court, in the case of Salem Advocates Bar Association (supra), held that provision of Order 8 Rule 1, CPC is directory and not mandatory; but, at the same time, it is observed that provision of Order 8 Rule 1, CPC is directory but the Court has wide powers to make such orders in relation to suits as it thinks fit. Further, it is held that time can be extended only in exceptionally hard cases and while extending time it has to be borne in mind that

Click Here to Read the rest of this document