Written Statement--Non filing of within 90 days--The period prescribed should generally be adhered to and the extension should be in exceptional cases.

Mrs. Daya Chaudhary, J.:- The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 15.03.2017 passed by the Civil Judge (Junior Division), Phillaur, whereby, the defence of the petitioner-defendant has been struck off.

2. Briefly, the facts of the case are that the plaintiffs-respondents filed a suit for recovery of Rs.50,000/- as compensation and damages on account of alleged malicious prosecution for causing illegal harassment, mental tensions and agony, loss of business and loss of reputation in the society at the hands of the defendant due to lodging of FIR No.236 dated 08.12.2012 at Police Station Phillaur, Jalandhar. After trial in the said FIR, the plaintiffs-respondents were held guilty vide judgment dated 12.04.2016 passed by the trial Court but they were released on probation. The plaintiffsrespondents averred in the suit that the prosecution launched against them was false and frivolous as the averments were proved wrong by the judgment. On receiving summons in the suit, defendant-petitioner appeared and thereafter, a lawyer was engaged to contest the case, who filed power of attorney and sought time to file reply. The petitioner was asked by the lawyer to get certified copy of judgment dated 12.04.2016, which was handed over to the Clerk of the counsel but the same was not handed over to the counsel by the Clerk. Again time was sought to file written statement and the defence of the petitioner was struck off vide order dated 15.03.2017, which is subject matter of challenge in the present revision petition.

3. Learned counsel for the petitioner submits that the written statement could not be filed as necessary documents were not handed over by the Clerk to the counsel whereas those documents were supplied by the petitioner. Learned counsel further submits that those documents were necessary for filing written statement and the petitioner should not suffer due to fault of Clerk of the counsel. Learned counsel also submits that only one opportunity is required for filing written statement and the petitioner is ready to compensate the other party in monetary terms.

4. Heard arguments of learned counsel for the petitioner and have also perused the impugned order as well as other documents available on the file.

5. In the impugned order, it has been mentioned that the written statement has not been filed whereas statutory period of 90 days had expired and thereafter, the defence of the petitioner was struck off.

6. Undisputedly, as per provisions of Order 8 Rule 1 CPC, the written statement is to be filed within a period of 90 days but the Court has discretion to allow the defendant to file written statement even after expiry of 90 days under exceptional circumstances as Order 8 Rule 1 is directory. opportunities/adjournments in case of special and extraordinary circumstances which are beyond the control of the party. Similar view has been observed by Hon’ble the Apex Court in case Salem Advocate Bar Association, Tamil Nadu vs. Union of India, 2005(3) R.C.R. (Civil) 530 which is as under:-

“In construing this provision, support can also be had from Order VIII Rule 10 which provides that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to suit as it thinks fit. In the context of the provision, despite use of the word ‘shall’, the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In