The striking off of a defendant's defence due to late filing of a written statement, despite court's extension, is unjustifiable, and such extensions are regarded as directory rather than mandatory, allowing for discretion within civil procedure.

JUDGEMENT

1. Petitioners have invoked writ jurisdiction of this Court to assail Order dated 15.03.2019 passed by learned 1st Civil Subordinate Judge (Special Municipal Mobile Magistrate), Jammu (trial Court, for short) vide which defence of the petitioners came to be struck of in a Suit titled 'Sh. Siddhant Daluja v. Guru Dutt and Ors.'

2. Before grounds of challenge urged in the petition are adverted to, it shall be expedient to have an overview of some uncontroverted facts of the case.

3. A civil Suit came to be filed by respondent No. 1/plaintiff against petitioners/defendants. Defendants entered appearance in the trial court of their own on 30.03.2017 and were directed to file written statement. On 01.05.2017 none appeared for the defendants and they were awaited. On 05.07.2017, time for filing written statement was extended by the trial court in the presence of learned counsel for the plaintiff. On 25.08.2017, none appeared for the plaintiff and he was awaited by the trial court. On 09.10.2017, time for filing written statement was again extended by the trial court in the presence of learned counsel for the plaintiff and case was adjourned for 04.12.2017. However, written statement was filed by the defendants on 02.11.2017 i.e. before the next date of hearing fixed for 04.12.2017, which was opposed by learned counsel for the plaintiff on the ground of limitation. An application came to be filed by the plaintiff on 03.05.2018 in terms of Order VIII Rule 10 of the Code of Civil Procedure, 1908 (for short, CPC) for striking out the defence of the defendants on the premise that written statement was not filed within the statutory period envisaged under Order VIII CPC. Application was opposed by the defendants on the ground that since time for filing written statement was extended by the trial court from time to time, which was not opposed by the plaintiff, therefore, plaintiff waived his right to oppose the filing of written statement by the defendants after the extension of time granted by the trial Court. Learned trial Court vide impugned order allowed the application filed by the plaintiff on the solitary ground that defendants have failed to give sufficient reasons, which prevented them from filing written statement in time.

4. The defendants/petitioners have questioned the impugned order inter alia on the same grounds on which application filed by respondent No. 1/plaintiff under Order VIII Rule 10 CPC, for striking of defence of the petitioners was opposed. According to the defendants, since time for filing written statement was extended by the trial court itself from time to time in the very presence of the plaintiff, therefore, finding of the trial court that petitioners-defendants have failed to give sufficient reasons for not filing written statement within the prescribed period is perverse and is liable to be quashed.

5. Heard arguments and perused the record.

6. Mr. R. K. S. Thakur, learned counsel appearing for the defendants has argued that Order VIII Rule 1 CPC provides that defendant shall present a written statement of his defence within 30 days from the date of service of summons on him and since, in the present case, defendants caused appearance in the trial Court of their own and no summons were ever served upon them, therefore, provisions contained in Order VIII Rule 1 CPC is not attracted in the present case. Mr. Thak