The court held that the provisions of Order 8 Rule 1 CPC are directory, allowing for judicial discretion in extending the time for filing written statements.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

Heard learned counsel appearing for the petitioner and learned counsel appearing for the opposite parties.

2. This petition has been filed under Article 227 of the Constitution of India for quashing of the order dated 13.07.2023 passed in O.S. No.22 of 2020 by Civil Judge (Sr. Division), Sahibganj whereby the learned Court has been pleased to accept the written statement and also admitted the counter claim of the defendant 2^nd Party No.5 and 6.

3. Learned counsel appearing for the petitioner submits that the Original Title Suit No.22 of 2020 was instituted for declaring the sale deed No.127 of 2019 dated 26.07.2019 as void ab initio and not binding against the plaintiff. He submits in the said suit the notice was issued upon the defendants and the defendants herein have not filed the written statement within time. With a delay of 9 days along with a limitation petition, the written statement was filed and the learned Court has been pleased to allow the same and the written statement has been taken on record. He submits in view of Order 8 Rule 1, there is bar of taking written statement after 90 days. On this ground, he submits that the order may kindly be set aside.

4. Learned counsel appearing for the opposite parties submits that in preparation and collecting certain documents such delay has occurred and in view of that the written statement was filed with a delay of 9 days along with petition for condonation of delay and the learned Court has allowed the same by condoning the delay. He further submits that the said rule is considered in several judgments and it has been held that the said rule is directory not mandatory and he relied in the case of Kailash versus Nanhku and Ors. reported in 2005 (4) SCC 480 in paragraph No.46 which has been held as under :-

46. We sum up and briefly state our conclusion as under:-

(i) The trial of an election petition commences from the date of the receipt of the election petition by the court and continues till the date of its decision. The filing of pleadings is one stage in the trial of an election petition. The power vesting in the High Court to adjourn the trial from time to time (as far as practicable and without sacrificing the expediency and interests of justice) includes power to adjourn the hearing in an election petition, affording opportunity to the defendant to file a written statement. The availability of such power in the High Court is spelled out by the provisions of the Representation of the People Act, 1951 itself and rules made for purposes of that Act and a resort to the provisions of CPC is not called for.

(ii) On the language of Section 87(1) of the Act, it is clear that the applicability of the procedure provided for the trial of suits to the trial of election petitions is not attracted with all its rigidity and technicality. The rules of procedure contained in CPC apply to the trial of election petitions under the Act with flexibility and only as guidelines.

(iii) In case of conflict between the provisions of the Representation of the People Act, 1951 and the rules framed thereunder or the Rules framed by the High Court in exercise of the power conferred by Article 225 of the Constitution on the one hand, and the rules of procedure contained in CPC on the other hand, the former shall prevail over the latter.

(iv) The purpose of providing the time schedule for filing the written statement under Order 8 Rule 1 CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the court to extend the time. Though the language of the proviso to Rule 1 Order 8 CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the procedural law, it has to be held directory and not mandatory. The power of the court to extend time for filing the written statement beyond the time schedul