HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

CR No. 68/2019

CM No. 8940/2019

Tirath Ram

…..Appellant(s)/Petitioner(s)

Through: Mr. Divya Ojesvi, Advocate

Vs

Banarshi Dass and another

.…. Respondent(s)

Through: Mr. Raghu Mehta, Advocate

Coram: HON’BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE

ORDER

04.10.2021

(OPEN COURT)

01.

This is a petition filed under Article 227 of the Constitution of India,

challenging the order dated 03.10.2019, whereby the trial Court has closed the

right of the petitioner to file written statement in the Suit, in which the petitioner

is a defendant No. 1. The ground on which the right has been closed is that

despite expiry of the maximum period of 90 days from the date of service of

summons, the written statement has not been filed.

02.

Learned counsel for the petitioner has tried to justify the delay during

arguments in the open Court. However, in my opinion, the reasons justifying the

delay ought to have been placed before the trial Court. That right to file an

application seeking permission of the Court to file the written statement still

exists with the petitioner in view of the Apex Court Judgement in “Salem

Advocate Bar Association, Tamil Nadu Vs Union of India, reported in 2005 6

Sr. No. 39

2

CR No. 68/2019

SCC 344, wherein the provisions of Order VIII Rule 1 have been held to be

directory and not mandatory. The Apex Court held that there was no restriction

in Order VIII Rule 10 that after the expiry of 90 days, further time could not be

granted and that the provisions of Order VIII Rule 1 providing for upper limit of

90 days to file the written statement was directory. Having held so, it was

further observed that the order extending the time to file written statement could

not be made in a routine fashion and that the time could be extended in

exceptionally hard cases so as not to nullify the period fixed by Order VIII

Rule 1.

03.

Be that as it may, this petition is disposed of with a liberty to the

petitioner to approach the trial Court with an appropriate application, which

shall be considered on its own merits, after hearing learned counsel for the

parties. It is made clear that the application of the petitioner shall be considered

by the trial Court only, if the same is filed two weeks from today.

04.

Connected application shall also stand disposed of accordingly.

(Dhiraj Singh Thakur)

Judge

Jammu

04.10.2021

Muneesh

MUNEESH SHARMA

2021.10.05 18:33

I attest to the accuracy and

integrity of this document