The power granted under Order 8 Rule 1 CPC to file a written statement within 90 days is directory in nature and not mandatory. The Court can extend the time in certain circumstances and consider the facts of a particular case where it is in the interest of justice that the time is required to be extended.

ORDER :

Ashok Kumar Gaur, J.

1. The instant writ petition has been filed challenging the order dated 26th May, 2009 whereby the Court below has permitted the written statement to be filed beyond the period of 90 days.

2. Learned counsel for the petitioner - Mr. Manish Kumar Sharma submitted that the Court below has committed illegality in permitting the written statement to be filed beyond 90 days, as Order 8 Rule 1 CPC provides that written statement is required to be filed within 90 days.

3. Learned counsel for the petitioner further submitted that the Court below has not considered that an application to explain the delay taken in filing the written statement, was not filed at all.

4. Learned counsel submitted that in absence of such application, the Court below could not have permitted filing of written statement beyond the prescribed time.

5. Learned counsel submitted that the order, which has been passed, suffers from serious legal infirmity and the defendants should not be permitted to file written statement, if they were not vigilant and did not comply with the time prescribed to file written statement.

6. Learned counsel for the petitioner has placed reliance on the judgment of the Supreme Court in the case of Mohammed Yusuf Vs. Faij Mohammad & Ors. reported in (2009) 3 SCC 513.

7. Learned counsel has also raised an objection that the counsel, who is appearing on behalf of the respondents, is in fact the Power of Attorney holder on behalf of the respondents and as such, counsel is not representing the contesting respondents before this Court, who were defendants.

8. Per contra, learned counsel Mr. Jai Prakash Gupta, who is appearing for the respondents, has submitted that the correct facts are required to be brought before this Court.

9. Learned counsel submitted that on 2nd May, 2003, an application in respect of written statement, which was to be filed by the original defendant Prakash s/o. Jawahar, was filed and the original defendant Prakash s/o. Jawahar (since deceased) had expired prior to decision of the said application.

10. Learned counsel submitted that after death of original defendant, an application under Order 22 Rule 4 CPC was filed for bringing his legal representatives on record. Amended cause title was filed on 17th January, 2006 and service of notice on legal representatives of original defendant was effected on 15th May, 2006.

11. Learned counsel submitted that written statement was filed on 8th November, 2006 without any delay.

12. Learned counsel also submitted that the petitioner had filed an application under Order 8 Rule 10 CPC against the original defendant and no such application, opposing filing of written statement, was filed against the legal representatives of the original defendant.

13. Learned counsel further argued that the power given under Order 8 Rule 1 CPC to file written statement within the period of 90 days is directory in nature and not mandatory.

14. Learned counsel has placed reliance on the judgment passed by the Supreme Court in the case of Zolba Vs. Keshao & Ors. reported in (2008) 11 SCC 769.

15. Learned counsel further submitted that the Coordinate Bench of this Court in the case of Laxmi Narayan Sharma Vs. Smt. Rajeshree Khandelwal & Ors. reported in 2016 (4) DNJ (Raj.) 1671 has also followed the law laid down by the Supreme Court and held that if the written statement was not filed within 90 days and further, application for condonation of delay was not filed, power to grant time beyond 90 days is available with the Court and requirement of 90 days is not mandatory.

16. Learned counsel, on the strength of said judgment, submitted that there is no necessity to file formal application for condonation of delay.

17. I have considered the submissions made by learned counsel for the parties and perused the record.

18. The facts of the case, which have come on record, establish that the original defendant had expired after filing of suit on 2nd May, 2003 and his legal representatives were brou