IMPORTANT POINT
The discretionary nature of Order 8 Rule 1 of C.P.C. and the need for its reasonable exercise to advance justice.

JUDGMENT :

1. Heard Sri Mithilesh Kumar Tiwari, learned counsel for the petitioner. No one is present on behalf of the respondent, even in the revised call.

2. This petition has been filed for following relief:

“Set aside the impugned order dated 11.05.2018 passed by learned Additional District & Sessions Judge, FTC, Court No. 2, Bijnor in M.P. no. 340 of 2015 (Devraj Singh Vs. Babli Devi) under section 13 Hindu Marriage Marriage Act.”

3. Brief facts of the case as mentioned in the petition are that the plaintiff-petitioner filed a divorce petition being Divorce Petition No. 340 of 2015 on 05.05.2015. Notice was issued on 05.05.2015 to the defendant-respondent Babli Devi for filing written statement in the aforesaid divorce petition by the Principal Judge, Family Court, Bijnor. After receiving the notices issued in the aforesaid divorce petition, the defendant-respondent appeared and filed an application Ga-10 dated 18.01.2016 under Section 24 of the Hindu Marriage Act and prayed for amount of Rs. 25,000/- for expenses of the aforesaid litigation. After filing the aforesaid application dated 18.01.2016 under Section 24 of Hindu Marriage Act, the defendant-respondent has not filed the written statement and started delaying the disposal of the aforesaid divorce petition by seeking adjournments. On 04.01.2017, the case was directed to proceed ex-parte against the defendant-respondent fixing 16.03.2017. On 16.03.2017 defendant-respondent filed an application paper No. Ga-28 dated 16.03.2017 with the prayer that she may be given an opportunity to file written statement. The application filed by the defendant-respondent was allowed by the court. Thereafter, on 10.04.2018 the defendant-respondent Babli Devi filed an application (paper No. 44-Ga) in the aforementioned case and prayed for condonation of delay in filing the written statement and has also made a prayer to accept the written statement in the aforesaid case. Along with her application dated 10.04.2018, defendant-respondent has also filed his written statement paper No. 46-Ka. To the application (paper No. 44-Ga) filed by the defendant-respondent, petitioner filed his objections and has stated therein that under the provisions of Order 8 Rule 1 of C.P.C., written statement can be filed within maximum period of 90 days after receiving the notice of the case. The application filed by the defendant-respondent dated 10.04.2018, was filed after a lapse of two years and three months. The court below vide order dated 11.05.2018 allowed the application filed by the defendant-respondent paper No. 44-Ga on payment of cost of Rs. 1,500/- and has also accepted the written statement filed by the defendant-respondent paper No. 46 Ka. Hence the present petition.

4. Contention of learned counsel for the petitioner is that under Order 8 Rule 1 as amended by Act No. 22 of 2002 (w.e.f. 01.07.2022) written statement can be filed within a maximum period of 90 days from the date of service of summons on the defendant. It has been further contended by learned counsel for the petitioner that after the amendment in Order 8 Rule 1 of C.P.C., there is no scope for granting any further time for filing written statement. It has been next contended by learned counsel for the petitioner that the provisions of Order 8 Rule 1 C.P.C. are mandatory in nature and the court below has no option but to reject the written statement, if filed beyond the period of 90 days.

5. Before proceeding the matter any further, it will be useful to look into the statutory provisions.

6. Order 8 Rule 1 provides that defendant shall file the written statement within 30 days from the date of service of summons. Proviso to Rule 1 of Order 8 C.P.C provides, in case, defendant fails to file the written statement within said period of 30 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 90 days from the date of service of s