The time schedule for filing the written statement is generally to be followed as a rule and departure should be by way of exception, with penalties as a deterrent.

JUDGMENT :

Namit Kumar, J.

1. Challenge in the present revision petition is to the order dated 12.05.2023 passed by the Court of learned Additional Civil Judge (Senior Division), Hathin, whereby defence of petitioner/defendant No.1 has been struck off in Election Petition No.16 of 2022 for non-filing of written statement despite availing several opportunities within the prescribed period of 90 days from the date of effecting service upon him.

2. Learned counsel for the petitioner contends that due to miscommunication between the petitioner and his counsel, the reply could not be filed within time and for that reason the petitioner had to change his counsel before the trial Court. He seeks one more opportunity for filing the reply subject to payment of reasonable costs. He further submits that non-filing of the written statement within the stipulated period is neither intentional nor deliberate.

3. I have heard learned counsel for the petitioner and perused the record.

4. The question is as to whether under the facts and circumstances of the case, the petitioner deserves to be granted any further opportunity for filing of written statement while setting aside the order passed by the Court below whereby defence of the petitioner was struck-off on account of non-filing of written statement.

5. Comprehensive amendments were made in CPC in the year 2002 in Order 8, Rule 1 CPC. The relevant provision is reproduced below:-

"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."

6. Aforesaid provision provides that 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 written statement within the said period of thirty days, he shall be allowed to file the same within such further time, 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.

7. The issue as to whether the period so provided under Order 8, Rule 1 CPC for filing the written statement is mandatory or directory, came up for consideration before Hon'ble the Supreme Court in Kailash v. Nanhku and others 2005 (2) RCR (Civil) 379, wherein it was opined that the purpose of amendment is to expedite and not to scuttle the hearing. This does not impose an embargo on the power of the court to extend the time further, as no penal consequences as such have been provided, the provisions being in the domain of the procedural law are not mandatory. However, it was further opined that keeping in view the need for expeditious trial of the civil cases, ordinarily the time schedule should be followed as a rule and departure therefrom would be by way of exception. The extension of time should not be granted as a matter of routine and merely for asking especially when the time is beyond the period of 90 days. In case any extension is to be granted, the same could be for good reasons to be recorded in writing may be in brief. Relevant paras from the aforesaid judgment are extracted below:-

"45(i) to (iii) x x x x

(iv) The purpose of providing the time schedule for filing the written statement under Order 8, Rule 1 of 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 of the CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision be