The provisions of Order 8 Rule 1 C.P.C. are not mandatory but are directory, and the Court can permit the defendant to file the written statement even beyond 90 days.

Satish Kumar Mittal, J.

1. The defendant has filed this petition under Article 227 of the Constitution of India for setting aside the Order dated 17.4.2004 passed by the Additional Civil Judge (Sr. Division). Sangrur vide which his defence has been struck off for non-filing of the written statement within the stipulated period of 30 days as provided under Order 8 Rule 1 C.P.C.

2. Counsel for the petitioner submitted that in this case the plaintiff Himmat Kumar has filed a suit for declaration challenging the sale deed dated 18.5,1999 vide which the land in dispute was purchased by the petitioner from defendants No.2 and 3. After notice, the defendants put appearance in the suit on 24.3.2004 and the case was adjourned for 12.4.2004 for filing of the written statement. The case was taken up on 10.2.2004 and adjourned for 17.4.2004 as the Presiding Officer was to go on leave on 12.4.2004. On 17.4.2004, the defence of the petitioner was struck off as the written statement was not filed within 30 days of the service of the summons. Immediately, after passing of the said order, the petitioner moved an application seeking permission to file the written statement on the grounds that the Presiding Officer was on leave on 12.4,2004 and on 13.4.2004 and 14.4.2004 it was holidays, therefore, written statement could not be filed. It was stated that the defendants were served on 12.3.2004. They appeared on 24.3.2004. On that date, the case was adjourned for 12.4.2004 for filing written statement. But, they could not file the written statement as the case was taken up on 10.4.2004, and the same was adjourned for 17.4.2004, and as such, the written statement could not be filed within 30 days i.e. up to 12.4.2004. On 17.4.2004, a request was made that the written statement is ready and the defendants be permitted to file the written statement by extending the time. The said application was also dismissed on the same date itself i.e. 17.4.2004. Hence this petition.

3. I have heard the counsel for the parties.

4. The Hon ble Apex Court in Rani Kusum (Smt.) v. Kanchan Devi (Smt.),1, Kailash v. Nankhu,2 and recently in Shaikh Salim Haji Abdul Khayumsab v. Kumar and Ors.,3 2005(4) R.C.R. (Civil) 823 has held that the provisions of Order 8 Rule 1 C.P.C. are not mandatory but are directory. Order 8 Rule 1 C.P.C. provides that the defendant shall, within thirty days from the date of service of summons, may file the written statement of his defence. However, the Proviso to this Rule further provides that if the defendant does not file the written statement within the said period of thirty days, he shall be permitted 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. While interpreting the aforesaid provisions, in Shaikh Salim Haji Abdul Khayum-sabs case (supra), the Hon ble Apex Court has held that the Court can permit the defendant to file the written statement even beyond 90 days. This provision does not specifically take away the power of the Court to take the written statement on record if filed after 90 days. It has been further held that a party cannot be made to suffer if the Court has committed a mistake. The maxim of equity, namely, actus curiae neminem gravabit - an act of Court shall prejudice no man, is also applicable in that situation.

5. In the instant case, the defendants were served on 12.3.2004 for 24.3.2004. On 24.3.2004 the case was adjourned for 12.4.2004 for filing of the written statement. However, the case was taken up on 10.4.2004 in absence of the petitioner as the Presiding Officer was to remain on leave on 12.4.2004, and the case was adjourned for 17.4.2004. On 17.4.2004, the defendants filed an application for permitting them to file the written statement, and the same has been declined. In this case, the defendant-petitioner had sought pennission to file the written statement