The court has the power to extend the time for filing a written statement beyond the period provided by the Code of Civil Procedure if exceptional circumstances have been made out, and it is needed due to reasons beyond the control of the defendant.

Sudhir Agarwal, J.;-

1. Heard learned counsel for the petitioner and perused the record.

2. Notice was issued to contesting respondent No.3 on 22nd February, 2008 and office report dated 8th March, 2011 shows that despite notice having been sent to respondent No.3 by R.P.A.D. (Registered Post with Acknowledgement Due) neither undelivered cover nor acknowledgement has been returned back. Therefore, service on respondent No.3 is deemed sufficient.

3. This is a short matter. The petitioner did not file written statement within time prescribed in Order VIII, Rule 1 of Code of Civil Procedure hence an application was filed for accepting written statement. The trial Court allowed petitioner-defendant's application and admitted his written statement beyond the time on payment of cost of Rs.200/- by its order dated 3.2.2003. Being aggrieved, respondent No.3 filed revision, which has been allowed by the Addl. District Judge on the ground that maximum period of 30 days could not have been extended and the same is mandatory in view of the law laid down by this Court in Waqf Mausooma Syed Husain & Anr. Vs. Daleep Kumar Jain & Ors. 2003(1) ARC 556.

4. However, the Apex Court having considered the above provision in Kailash Vs. Nanhku JT 2005 (4) SC 204 held that the provision is directory in nature and the Court's power to extend time for written statement beyond the period provided by Order VIII, Rule 1 C.P.C. is not completely taken away. In para 45 (iv) & (v), the Apex Court said:

"(iv) The purpose of providing the time schedule for filing the written statement under Order VIII, 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 of Order VIII of the CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the Procedural Law, it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by Order VIII, Rule 1 of the CPC is not completely taken away.

(v) Though Order VIII, Rule 1 of the CPC is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case."

5. This has been followed by Apex Court subsequently in Zolba Vs. Keshao & Ors. 2008 (11) SCC 769 where in para 8 of judgment, the Court said:

"Therefore, following the principles laid down in the decision, as noted hereinabove, it would be open to the court to permit the appellant to file his written statement if exceptional circumstances have been made out. It cannot also be forgotten that in an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Therefore, unless compelled by express and specific lan

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