The acceptance of a delayed written statement is justified to prevent a failure of justice, emphasizing the discretionary nature of the High Court's supervisory powers under Article 227.

JUDGMENT :

Subhash Vidyarthi J.

1. Heard Shri Nilish Anand, the learned counsel for the petitioner.

2. By means of the instant petition filed under Article 227 of the Constitution of India, the petitioner is seeking following main reliefs:-

“i. an Order or Direction to the Vth Additional Principal Judge Family Court, Lucknow to ignore the Written Statement submitted by the Opposite Party No. 1-Wife on 16.08.2023 after a delay of 5 years and after putting in appearance on 13.03.2018 in Regular Suit No. 2300 of 2016 Pawan Kumar Srivastava Versus Shaily Srivastava.

ii. a direction to the Vth Additional Principal Judge Family Court, Lucknow to proceed with the Regular Suit No. 2300 of 2016 Pawan Kumar Srivastava Versus Shaily Srivastava in accordance with the provisions of Order VIII Rule 10 C.P.C.;”

3. The petitioner has impleaded the learned Additional Principal Judge V, Family Court, Lucknow as an opposite party to the petition, whereas as per law laid down by the Hon’ble Supreme Court in Savitri Devi Vs. District Judge, Gorakhpur; (1999) 2 SCC 577 and in Jogendrasinhji Vijaysinghji v. State of Gujrat, (2015) 9 SCC 1, the Civil Courts ought not to be impleaded as opposite parties to the petitions filed in the High Courts. Accordingly, the learned counsel for the petitioner is directed to strike out the name of learned Additional Principal Judge V, Family Court, Lucknow, from the array of opposite parties forthwith.

4. The petitioner has pleaded that on 01.09.2016, he filed Regular Suit No. 2300 of 2016 for dissolution of marriage in the Court of Principal Judge, family Court, Lucknow, which was transferred to the Court of Additional Principal Judge, Court No V, Family Court, Lucknow. The suit was registered and admitted on the same date and summons were issued to the opposite party. The opposite party put in appearance in the suit on 22.05.2018 and she continuously appeared thereafter, but she did not file her written statement or any application for extension of time for filing the written statement, although Order VIII Rule 1 C.P.C. stipulates that a written statement has to be filed within 30 days, which period can be extended for a further period of 90 days only. On 10.08.2023, the petitioner filed an application (Paper No. C-20) under Order VIII Rule 10 C.P.C. praying for pronouncing judgment against the opposite party. The Family Court invited objections against the application, but instead of filing any objection, the opposite party filed her written statement on 16.08.2023, which has been accepted by the Family Court.

5. It is also mentioned in the petition that the suit was dismissed for default of the petitioner on 21.02.2019, he had filed an application for restoration on 01.07.2019 alongwith an application for condonation of delay, which was registered as Miscellaneous Case No. 11-C of 2019 and which was allowed by means of an order dated 25.04.2023, a copy whereof has been filed as Annexure No. 7 to the petition, Annexure No. 7 mentions the date of recall order to be 25.04.2024.

6. On 10.08.2023, the plaintiff filed an application under Order VIII Rule 10 CPC stating that the written statement had not been filed in accordance with the provisions of Order VIII CPC and, therefore, the Family Court should pronounce judgment as per the mandatory provisions contained in Order 8 CPC. The defendant appeared before the Family Court and filed her written statement on 16.08.2023 after serving a copy thereof on the plaintiff.

7. The Family Court has rejected the aforesaid application by means of the impugned order dated 16.05.2024 holding that there was no good ground for rejecting the written statement filed by the petitioner.

8. In the order dated 16.05.2024, the learned Additional Principal Judge, Family Court No.V, Lucknow has recorded that the petitioner filed Regular Suit No.2300 of 2016 on 01.09.2016. The Family Court had issued summons of the suit to the defendant but on 21.02.2021, the suit was dismissed due to non-appearance