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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

: O R D E R :

Manoj Kumar vs. Mevaram Mehta

(S.B. CIVIL WRIT PETITION NO.3105/2005)

DATE OF ORDER ::: JULY 15, 2005

P R E S E N T

HON'BLE MR. JUSTICE PRAKASH TATIA

_______________________________________

Mr. Girish Joshi, for the petitioner.

BY THE COURT :

REPORTABLE

Heard learned counsel for the petitioner.

The petitioner/plaintiff says that the delay with which

he has raised objection is immaterial and the delay which

was committed by the respondent/defendant in contesting the

suit is more material to the extent that the defendant may

be deprived from raising of the defence in a civil suit.

This has happened because of the fact that as per Rule

1 of Order 8 CPC, the defendant is required to file written

statement within thirty days from the date of service of

summons on him. Proviso to Rule 1 of Order 8 CPC provides

that in case, the defendant fails to file the written

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statement within thirty days period from service of summons

upon him, he can be allowed to file the written statement

only upto the period of ninety days that too from the date

of service of summons only. That is not enough but for that

purpose, the defendant is required to satisfy the Court by

showing reasons for not filing the written statement within

thirty days as provided under Rule 1 of Order 8 CPC.

In this case, the relevant dates are that the defendant

was served with summons on 21.4.2004, therefore, he could

have submitted written statement by 21.5.2004. He did not

file the written statement by 21.5.2004. The suit

proceedings continued without any adverse order against the

defendant upto 29.7.2004 and on 29.7.2004, the defendant

submitted written statement. By that time, even period of

ninety days also expired within which the defendant could

have submitted the written statement. It will be worthwhile

to mention here that the plaintiff, without whose presence,

the suit could not have proceeded did not raise any

objection about not filing of the written statement by the

defendant even when the defendant did not submit the

written statement in thirty days and thereafter, in ninety

days. Not only this but the plaintiff did not objected to

Court's adjourning case for filing the written statement

beyond the entire period of 90 days for specific purpose of

filing written statement. Be it as it may be, without any

objection of the plaintiff and without there being any

objection from the Court, when the case was fixed for

filing written statement on 29.7.2004, the defendant

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submitted the written statement on 29.7.2004 in the Court

and that was taken on record.

The plaintiff, who wanted to take benefit of the

amended provisions of CPC providing for speedy disposal of

the suits and disposal of the suit in time frame, remained

a silent spectator, obviously so that he may have a march

over the defendant as timely objection by the plaintiff

against adjourning the case for filing written statement

would not have placed the plaintiff in advantageous

position to which he wants to reach. As stated above, the

period of ninety days expired. Not only this, but when the

written statement was filed on 29.7.2004, no objection was

raised by the plaintiff. The plaintiff raised objection

against taking written statement on record after about 14

days i.e. on 22.8.2004.

According to learned counsel for the petitioner, the

limitation given in Rule 1 of Order 8 CPC is mandatory and

even the Court has no jurisdiction to extend the period of

limitation without recording any reason for allowing the

defendant to file written statement beyond the period of

thirty days.

Learned counsel for the petitioner also submitted that

the Hon'ble Apex Court in the case of Kailash vs. Nanhku

and others reported in (2005) 4 SCC 480 held that a prayer

seeking time beyond 90 days for filing the written

sta