Order on Board

10.01.2025

1. The petitioners/defendants No.1 to 3 have filed this petition challenging the orders dated 07.09.2021 and 02.04.2022 passed by the learned Second Civil Judge, Class-I, Baikunthpur, District Koriya (C.G.) in Civil Suit No.12-A/2020 whereby the right of the petitioners to file written statement has been closed on the ground that the same was not filed within a period of 90 days from the date of service of summons.

2. Mr. Shukla, the learned counsel appearing for the petitioners would submit that earlier the petitioners/defendants No.1 to 3 were proceeded ex parte on 07.09.2021. He would further submit that an application under Order 9 Rule 7 along with an application under Section 151 of CPC was moved seeking ex parte order to be set aside and to take the written statement on record. He would contend that vide order dated 02.04.2022, the learned Trial Court allowed the application under Order 9 Rule 7 of CPC moved by the petitioners but rejected the application under Section 151 of CPC and closed the right of the petitioners to file written statement and the same was not taken on record. He would further contend that the Hon’ble Supreme Court in the matter of Kailash Vs. Nanhku and others, 2005 (4) SCC 480 and Desh Raj Vs. Balkishan(Dead) through proposed legal representative Ms. Rohini, 2020 (2) SCC 708 have held that the provisions of Order 8 Rule 1 of CPC are directory in nature. He would lastly submit that the learned Trial Court ought to have allowed the application moved by the petitioners by imposing some cost etc.

3. On the other hand, learned counsel appearing for the respective respondents would oppose the submissions made by Mr. Shukla, They would submit that the civil suit was filed in the year 2018 and the petitioners/defendants No.1 to 3 appeared in the year 2018 itself before the learned Trial Court but they failed to file the written statement within a period of 90 days, therefore, the learned Trial Court rightly rejected the application moved by the petitioners under Section 151 of CPC and denied to take on record the written statement. They would lastly submit that the present petition deserves to be dismissed.

4. I have heard the learned counsel appearing for the parties and perused the documents placed on the record.

5. In the matter of Nanhku (supra), the Hon’ble Supreme Court in para 46 held as under:-

“46. We sum up and briefly state our conclusions as under:-

(i) xxxxxxxxxxxxxxxxxxxxxx (ii) xxxxxxxxxxxxxxxxxxx (iii) xxxxxxxxxxxxxxxxxxx (iv) The purpose of providing the time schedule for filing the written statement under Order 8 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 8 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 8, Rule 1 of the CPC is not completely taken away.

(v) Though Order 8 Rule 1 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. Exte