Judgment - Heard Sri B.S. Khanka, Advocate for the petitioners, Standing counsel for the respondent no.1 and Sri M.C. Pandey, Advocate for the respondent no. 2.

2. By the present writ petition, the petitioners have prayed for a writ of certiorari quashing the order dated 16th October, 2003 passed by the respondent no. 1.

3. Briefly stated, a suit No. 14 of 2003 was filed praying for a decree for permanent injunction restraining the respondents from interfering in the premises in dispute. Along with the suit, respondent no. 2 has also filed an application under Order 39 Rules 1 C.P.C. The suit was instituted on 16th May, 2003 and it appears that the written statement was filed on 06-09-2003.

4. The impugned order has been passed directing the petitioner to take back the written statement 28-Ka and the same shall not be taken on the record of the case.

5. A perusal of the order passed by the Addl. District Judge shows that not only the written statement was directed to be taken back but also further order has been passed that the suit will proceed ex parte.

6. During the proceedings of the case, the plaintiff has filed an application 30-Ga stating therein that the written statement filed by the petitioner is not admissible as the same was filed on 6th September, 2003 when in point of fact, the service was already affected on 17-05-2003, and the petitioner has put no appearance on 27-05-2003, through the Advocate.

7. The petitioner has controverted the said application and has submitted that they are entitled for the extension of the time under Section 151 of the Code of Civil Procedure as she is an illiterate lady.

8. Sri M.C. Pandey, appearing for the respondent no. 2 has referred the provisions of Order 8 Rule 1 as substituted w.e.f. 1st July, 2002. The same is quoted below :-

"[1. Written statement.- The defendant shall, within thirty days form 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.]"

9. The impugned order was passed on 19th October, 2003 and thereafter various judgments of the Apex Court were pronounced, where Order 8 Rule 1 has been held to be procedure law and is directory. The Apex Court in Kailash Vs. Nanhku and others 2005 AIR SCW 2346 has held as under :-

"27. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna lyer, J. in Sushil Kumar Sen v. State of Bihar (1975) 1 SCC 774, are pertinent :-

"The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer.

The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitae where the tragic sequal otherwise would be wholly inequitable. Justice is the goal of jurisprudence-processual, as such as substantive."

32. As stated earlier, Order VIII, Rule 1 is a provision contained in CPC and hence belongs to the domain of procedural law. Another

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