The main legal point established in the judgment is the mandatory nature of the provision requiring the defendant to file a written statement within the specified period, with rare exceptions for failure of justice or extraordinary circumstances.

M.M.Kumar, J.

1. This petition filed under Article 227 of the Constitution prays for quashing order dated 17.9.2004 passed by the Additional Civil Judge (Sr. Division), Gurdaspur striking off the defence of the defendant-petitioner for his failure to file the written statement despite the fact that he has been appearing before the Court through counsel since 12.4.2004.

2. Brief facts of the case are that plaintiff-respondents 1 to 5 filed Civil Suit No. 150 on 28.8.2002 against the defendant-petitioner and defendant-respondents 6 to 26 seeking a declaration to the effect that plaintiff-respondents 1 to 5 and the defendant-petitioner as well as defendant-respondents 6 and 7 are co-sharers in the suit land. After the issuance of summons and service of the same the defendant-petitioner appeared before the Court through his counsel on 12.4.2003. The case has been adjourned from time to time for effecting service on other unserved defendant-respondents. There are various interlocutory orders dated 8.11.2002, 13.1.2003, 25.2.2003, 12.4.2003, 29.4.2003, 12.6.2003, 21.10.2003, 23.10.2003, 4.2.2004, 2.4.2004, 26.5.2004 and the impugned order dated 12.8.2004. These orders show service on one or the other defendant-respondent or initiation of ex parte proceedings on the served defendant-respondents. When the defendant-petitioner failed to file the written statement within a period of 30 days from the date of service or maximum period of 90 days as provided by Order VIII Rule 1 of the Code of Civil Procedure, 1908 (for brevity, the Code), the learned Civil Judge by relying on Order VIII Rule 1 of the Code has struck off the defence of the defendant-petitioner.

3. Learned counsel for the defendant petitioner has vehemently argued that he may be permitted to file his written statement by affording him one opportunity. According to the learned counsel, the provisions of Order VIII Rules 1, 8 and 9 of the Code are directory in nature and no not call for adherence to the time schedule specified therein. In support of his submission, the learned counsel has placed reliance on a Division Bench judgment of Bombay High Court in the case of Chintamani Sukhdeo Kaklij v. Shivaji Bhausaheb Gadhe, 2004(4) R.C.R. (Civil) 590 and argued that in cases of extreme difficulties and extra ordinary situation, relaxation in time limit imposed by Order VIII Rule 1 of the Code may be necessary.

4. I have thoughtfully considered the submissions made by the learned counsel and do not feel persuaded to accept the same. It is necessary to make a reference to Order VIII. Rule 1 of the Code which reads as under:-

ORDER VIII

[WRITTEN STATEMENT, SET-OFF AND COUNTER-CLAIM]

[1. Written statement

The defendant shall, within thirty days from the date of service of summons on

him, present a written statement of his defence:

PROVIDED that where the defendant fails to file the written statement within

the said period of thirty days, he shall be allowed to file the same on such

other day, as may be specified by the Court, for reasons to be recorded in

writing, but which shall not be later than ninety days from the date of

service of summons.

[1A. Duty of defendant to produce documents upon which relief is claimed or

relied upon by him.

(1) Where the defendant bases his defence upon a document or relies upon any

document in his possession or power, in support of his defence or claim for

set off or counter claim, he shall enter such document in a list, and shall

produce it in court when the written statement is presented by him and shall,

at the same time, deliver the document and a copy thereof, to be filed with

the written statement.

(2) Where any such document is not in the possession or power of the

defendant, he shall, wherever possible, state in whose possession or power it

is.

[(3) A document which ought to be produced in Court by the defendant under

this rule, but, is not so produced shall not, without the leave of the Court,

be received in evidence