JUDGMENT :

1. Present writ petition has been preferred by the plaintiff/petitioner for quashing the order dated 05.12.2022 passed by learned Sub-Judge – V, Giridih in Partition Suit No. 66 of 2013 whereby and whereunder, the learned trial court has accepted the written statement filed by the defendant no. 6 rejecting the petition of the plaintiff/petitioner dated 12.08.2022.

Brief background of the case:

2. The plaintiff/petitioner has instituted partition suit No. 66 of 2013 wherein after service of summons defendant nos. 3, 4 and 5 appeared and filed their written statement but defendant no. 2 to 6 did not appear, inspite of publication of summons in daily newspaper “Prabhat Khabar”. Substituted service through paper publication dated 03.03.2020 was deemed sufficient against the defendant no. 6 but he failed to file his written statement within statutory period of thirty days from the date of service of summons.

3. It is alleged that after lapse of two years defendant no. 6 filed his written statement on 20.01.2022 without taking leave of the court. The plaintiff/petitioner filed an application dated 06.06.2022 stating therein that the written statement filed by the defendant no. 6 is hopelessly barred by limitation and filed with malafide intention to linger the proceeding which may be rejected.

4. A rejoinder was also filed by the defendant no. 6 dated 21.07.2022 against the petition filed by the plaintiff/petitioner dated 06.06.2022 but the learned Sub-Judge – V, Giridih by impugned order has rejected the petition and objection filed by the plaintiff/petitioner.

Arguments on behalf of petitioners

5. It has been submitted on behalf of the petitioner that the impugned order is totally illegal and based on conjecture and surmises and liable to be set aside. Admittedly, there was no application filed by the defendant no. 6 under Section 148 CPC for enlargement of time to file the written statement within the statutory period of thirty days as prescribed under Order 8 Rule 1 CPC or extended time of 90 days.

The sole point for consideration raised by the learned counsel for the petitioner is against the accepting of belated written statement of respondent no. 6 which was hopelessly time barred as prescribed under Order 8 Rule1 CPC.

Analysis of the relevant provision

6. Order 8 Rule 1 C.P.C., as amended by Act 46 of 1999 provides that the defendant shall within 30 days from the date of service of summons on him, present written statement of his defense. The rigour of this provision was reduced by amendment Act 22 of 2002 which enable the court to extend time for filing written statement, on recording sufficient reasons, therefore but the extension can be maximum of 90 days.

The question is whether the court has power or jurisdiction to extend the period beyond 90 days. The maximum period of 90 days to file written statement has been provided but the consequences on failure to file written statement within the said period have not been provided for in Order 8 Rule 1 C.P.C.

The point for consideration is whether the provision providing for maximum period of 90 days is “mandatory”? and, thereafter, the court is altogether powerless to extend the time even in exceptionally hard case?

It has been common practice for the parties to take long adjournment for filing written statement. The legislature with a view to curve this practice and to avoid unnecessary delay and adjournments has provided for the maximum period within which the written statement is required to be filed. The mandatory or directory nature of Order 8 Rule 1 C.P.C. shall have to be determined by having regard to the object sought to be achieve by the amendment. It is thus necessary to find out the intention of the legislature. The consequences which may follow and whether the same were intended by the legislature have also to be kept in mind.

7. In the case of D. Parikh & Associates (Law Firm) in Salem Bar Association, the Apex Court has held :

“21. There is no restriction in Order