Mr. Deepak Sibal J. (Oral):- Through the present petition filed under Article 227 of the Constitution of India, challenge has been made to order dated 06.01.2017 passed by the Rent Controller, Chandigarh (Annexure P-1) through which an application filed by the petitioner under Order 8 Rule 1 read with Section 151 of the Code of Civil Procedure, 1908 (for short ‘the Code’) was dismissed. Order dated 10.07.2017 (Annexure P-2) through which the petitioner’s application seeking review of the aforesaid order dated 06.01.2017 was dismissed, is also impugned.

2. The petitioner had filed an ejectment petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short ‘the Act’) seeking therein the ejectment of the respondents on the grounds mentioned therein. In pursuance to the notice issued in such petition, the respondents had appeared before the Rent Controller, Chandigarh but since they did not file their written statement within 90 days, an application under Order 8 Rule 1 of the Code was preferred by the petitioner seeking to strike off the respondents’ defence which through the impugned order was dismissed. The petitioner then sought a review of the aforesaid order which was also dismissed.

3. Learned counsel for the petitioner submits that it could not be disputed that after the respondents had put in appearance before the Rent Controller, Chandigarh, they did not file their written statement within 90 days and for not doing so, no reasonable explanation has been offered by them. Thus, as per the mandate of law, the petitioner’s application filed under Order 8 Rule 1 of the Code should have been accepted by the Rent Controller, Chandigarh, resulting in the striking off of the respondents’ defence.

4. The afore submissions made by learned counsel for the petitioner do not merit acceptance.

Order 8 Rule 1 of the Code 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.”

5. While interpreting Order 8 Rule 1 of the Code, the Apex Court in Zolba vs. Keshao and others, [2008(3) Law Herald (SC) 1758] : (2008) 11 SCC 769 has held as under:-

13. Considering the facts and circumstances of the present case and the statements made in the application for condoning the delay in filing the written statement, we are not in a position to hold that the appellant was not entitled to file the written statement even after the expiry of the period mentioned in the proviso to Order 8 Rule 1 of the CPC. After reading the provisions, in particular the proviso to Order 8 Rule 1 of the CPC, we are unable to hold that the provisions under Order 8 Rule 1 are mandatory in nature.

14. In Salem Advocate Bar Assn. v. Union of India, it has been clearly held that the provisions including the proviso to Order 8 Rule 1 of the CPC are not mandatory but directory. It has been held in that decision that the delay can be condoned and the written statement can be accepted even after the expiry of 90 days from the date of service of summons in exceptionally hard cases. It has also been held in that decision that the use of the word “shall” in Order 8 Rule 1 of the CPC by itself is not conclusive to determine whether the provision is mandatory or directory. The use of the word “shall” is ordinarily indicative of mandatory nature of the provision but having regard to the decision in that case, the same can be construed as directory. In paragraph 21 of the said decision, this court observed as follows: (SCC p.364, para 20)

“20. The use of the word ‘shall’ in