The main legal point established is that the provisions of Order-8 Rule-1 of the CPC, although couched in mandatory form, are to be construed as directory, allowing for exceptions in exceptional situations beyond the control of the defendant.

B.S. WALIA, J.

1. Prayer is for quashing of order dated 07.06.2014 passed by the learned 3rd Additional Munsiff, Jammu whereby delay in filing the written statement by respondent No. 1 was condoned and written statement filed was allowed to be placed on the record subject to payment of Rs. 500/- as costs. Brief facts of the case leading to the filing of the instant petition are that the petitioner filed a suit before the learned 3rd Additional Munsiff, Jammu leading to interim order dated 24.01.2014 directing the parties to maintain status-quo till the next date with notice for 10.02.2014.

2. Respondent No. 1 filed written statement as well as objections to the interim application after the lapse of statutory period of 90 days allowed for filing the written statement along with an application for condonation of delay in filing the written statement.

3. Petitioner filed objections to the same whereupon after hearing arguments of both the sides, the learned 3rd Additional Munsiff, Jammu condoned the delay and allowed respondent No. 1 to place written statement on record subject to payment of Rs. 500/- as costs vide order dated 07.06.2014.

4. Main thrust of the submissions of learned counsel for the petitioner is that the impugned order has not been passed by the learned Court below in accordance with the mandate of Order-8 Rule-1 of the CPC.

5. Learned counsel for respondent No. 1 contended that a counsel had been engaged by respondent No. 1 and vakalatnama was given vide communication No. ED/JMU/Court-case/District-Jammu/236, dated 07.02.2014, stand of the National Highway Authority of India was communicated to learned counsel for filing written statement and defending its interest and said counsel had caused his appearance on behalf of the NHAI before the learned trial court on 10.02.2014 and sought time to file written statement but despite repeated requests, learned counsel did not file the written statement whereupon respondent No. 1 engaged another counsel on 26.05.2014, got the written statement drafted and filed the same on 29.05.2014. On the basis of the same, it is contended that the delay in filing written statement was neither intentional nor deliberate and further that as per well settled law, parties should not be allowed to suffer for the mistake/negligence of counsel and neither the rightful, meritorious and enforceable right of a party should be frustrated because of the negligence and dereliction of duties of the counsel engaged by the party.

6. Learned counsel placed reliance on the decision of this Court in 'Shyam Lal Dhar v. M/s. Ply Board Industries', AIR 1981 J & K 95' to contend that as a general rule, a litigant could not be held responsible for the negligence of his counsel unless there had been any remissness on the part of the litigant himself. Relevant extract of the aforementioned decision is reproduced hereunder:-

'On these observations, with which we generally agree, it necessarily follows that where the defendant employs a counsel for the purpose of his appearance in the case Court and the counsel neglects or fails to appear in the case, his neglect or failure would constitute a sufficient cause for the non-appearance of the defendant within the meaning of 0.9. R-13 provided that the defendant had done all that was required of him to ensure that the counsel would represent him on all the necessary hearings. It also follows that where the delay in filing the application for setting aside the ex parte decree is due to the negligence or failure of the counsel to inform the defendant that an ex parte decree had been passed against him, such neglect or failure would be a sufficient cause for condonation of delay under section 5 of the Limitation Act provided the defendant had done all that was required of him in order to keep himself posted with the progress of the case.

In this background our reply to the question whether a litigant can be held responsible for the negligence of the counsel would be