The right to file a written statement is forfeited if not submitted within the statutory period, and courts lack discretion to extend this period.

ORDER :

1. The petitioner through the medium of present petition has challenged order dated 10.05.2024 passed by learned Munsiff Budgam, whereby the learned trial court has refused to take on record the written statement filed by the petitioner.

2. Issue notice to the respondents No.5 to 8 in the first instance. Mr.Malik Mudasir Yousuf, Advocate appearing vice Mr. Shuja-ul-Haq, Advocate, who is on caveat, has waived notice on behalf of respondents No.5 to 8.

3. Caveat stands discharged.

4. Heard learned counsel for the parties and perused the record.

5. It appears that the private respondents have filed a suit for permanent prohibitory injunction against the petitioners/defendants before the Court of learned Munsiff Budgam. The said suit was filed on 24.05.2022. It seems that on 13.09.2022, the petitioner, who happens to be defendant No.6 in the suit, appeared through his counsel before the trial court and sought time to file written statement. However, no written statement was filed by him despite availing a number of opportunities in this regard. In fact the petitioner/defendant No.6 alongwith other defendants had caused appearance before the trial court on 25.06.2022. However, defendant Nos. 1 to 5 filed their written statement and the petitioner/defendant No.6 went on seeking opportunities for filing the same. It also appears that on 04.05.2023 counsel for the petitioner/defendant No.6 presented his written statement and the same was objected to by the counsel for the plaintiff. Thereafter, petitioner/defendant No.6 filed an application on 22.05.2023 seeking permission to take on record his statement. Vide the impugned order learned trial court refused to take the written statement filed by the petitioner/defendant No.6 on record and rejected the application of the petitioner/defendant No.6 moved for the said purpose.

6. The petitioner has challenged the impugned order on the ground that the learned trial Court on the one hand has directed the petitioner/defendant No.6 to file written statement in terms of various orders passed by it from time to time, but at the same time vide the impugned order the trial court has declined to take the written statement on record. It has been further contended that the impugned order has been passed without appreciating the facts and circumstances of the case. It has also been contended that the Revenue Court has passed a direction against the plaintiffs/private respondents for removal of encroachment but they have filed the civil suit before the trial court just to defeat the orders passed by the Revenue Court.

7. Learned counsel appearing for the petitioner has while reiterating aforesaid contentions placed reliance upon judgment of the Supreme Court in case Prakash Corporates versus Dee Vee Projects limited (Civil Appeal No.1318/2022 arising out of SLP(C) No.13751 of 2021 decided on 14.02.2022), contended that the provisions contained in Order VIII Rule 1 of Civil Procedure Code, as applicable to UT of Jammu and Kashmir, are not mandatory in nature. It has been further contended that the learned trial court has passed two different orders on the same date i.e, on 10.05.2024.

8. As is clear from the sequence of the events narrated hereinbefore, the petitioner/defendant No.6 appeared before the trial court on 25.06.2022 and it was only on 04.05.2023 that he presented his written statement before the trial court, meaning thereby that he has filed his written statement after more than ten months of gaining the knowledge of filing the suit against him by the plaintiffs. As per provisions contained in Order VIII Rule 1 of CPC, as applicable to UT of Jammu and Kashmir, on expiry of 120 days from the date of service of summons, the defendant forfeits his right to file the written statement. It is further provided in the said provision that the Court shall not allow that the written statement is taken on record.

9. A co-ordinate Bench of this Court in the case of Rajinder Singh Manhas versus Anil Gaind