Provisions requiring timely submission of written statements under civil procedure are directory; however, extensions should only be granted for compelling reasons supported by evidence to prevent judicial negligence.

ORDER :

1. The challenge in this petition is mounted to the order dated 04.01.2024, whereby I.A.No.1090 of 2023 in S.O.P.No.6 of 2023 on the file of I Senior Civil Judge, City Civil Court, Hyderabad, was decided.

2. The admitted facts between the parties are that the main case was filed for grant of succession certificate. The petitioner/respondent No.2 remained absent on several dates. Since on 31.08.2023 also the petitioner remained absent, the trial Court forfeited his right to file written statement/counter. The said order is sought to be recalled/set aside by filing the application under Order IX Rule 7 read with Section 151 of Civil Procedure Code (CPC). The Court rejected the same.

3. Learned counsel for the petitioner submits that in view of the judgment of Supreme Court in the case of Raj Process Equipments and Systems Pvt. Ltd. vs. Hones Derivatives Pvt. Ltd. Civil Appeal No. 8089 of 2022 dated 03.11.2022, it is clear that Order VIII Rule 1 of CPC is directory in nature, which was based on Salem Advocate Bar Association vs. Union of India , (2005) 6 SCC 344 . In this view of the matter, the Court should have recalled the order and permitted the petitioner to file his written statement.

4. The prayer is opposed by the other side on the basis of judgment of Madhya Pradesh High Court in the case of Salim Khan vs. Nargis Begum , 2015 SCC OnLine MP 5136 .

5. I have heard the parties at length and perused the record.

6. The trial Court rejected the application by assigning the following reasons:

“Upon perusing the record, the docket in SOP shows that respondent No.2 made his appearance through his counsel on 23.03.2023 and thereafter it was posted to 31.03.2023, 20.04.2023, 15.06.2023, 10.07.2023, 03.08.2023, 17.08.2023, 31.08.2023 on several conditional orders and inspite of it, petitioner failed to file counter. Moreover, except taking plea of being sick for one week before setting his exparte, could not produce any medical certificate to show that he was unable to appear before the Court or before his counsel to file the counter. Petitioner could not give any cogent cause for not filing the counter from 31.03.2023 to 31.08.2023 i.e., for a period of 5 months. Hence, petition is found to be devoid of merits.” (Emphasis Supplied)

7. The finding of fact recorded by the trial Court is not doubted by the learned counsel for the petitioner. Thus, the petitioner consistently remained absent in the main proceedings and accordingly his right to file written statement was closed. The petitioner has not filed any medical certificate to establish his inability to appear on 31.08.2023.

8. The judgment in the case of Raj Process Equipments and Systems Pvt. Ltd. (supra) is basically on the point that time limit for filing written statement as per CPC is not mandatory when suit was instituted before normal Civil Court and transferred to Commercial Court after expiry of 120 days. In the instant case, admittedly, the suit was never transferred to Commercial Court.

9. The High Court of Madhya Pradesh in the case of Bismilla Bee vs. Arjuman Aara, 2014 (3) MPLJ 593, at relevant paragraphs held as under:

11. The core issue is whether reasons assigned by the Court below in permitting the defendants No. 1 to 5 to file written statement is in accordance with law? In the opinion of this Court, this point is no more res integra. In Kailash (supra)

Apex Court opined as under:—

“(v) Though Order 8, Rule 1, Civil Procedure Code is a part of procedural law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded 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 the asking, more so when the period of 90 days has expired. Extension of time may be allow