ORDER :

Rajesh Bindal, J.

1. The petitioners have approached this Court impugning the order dated 28.01.2020 passed by the learned Court below, vide which their right to file written statement has been closed and the case has been put up for evidence of the plaintiff-respondent herein.

2. Learned counsel for the petitioners submitted that a Civil Suit was filed by the respondent-Bank against the petitioners on 29.05.2019, in which petitioners were served on 27.08.2019. However, copy of the plaint was not accompanying the notice. Hence, the petitioners were not able to prepare and file their written statement. When the case was listed before the Court below on 01.10.2019, the petitioners had put in their appearance and the copy of the Suit and the annexures were supplied to them at that time. Time was sought to file the written statement. The case was adjourned to October 30, 2019. As the petitioner No. 2 is about 80 years of age and was not keeping good health and was even operated upon, though the written statement was prepared, however, the same could not be signed and filed in the Court. On 28.01.2020, the learned Court below rejected the application of the petitioners for extension of time to file written statement and their right to file the same was closed and the case was put up for evidence on 22.03.2020.

3. Referring to the judgment of the Hon'ble Supreme Court in case titled M/s. Nahar Enterprises v. M/s. Hyderabad Allwyn Ltd. and another (2007) 9 SCC 466, it was submitted that when summons are sent requiring the defendants to appear and file written statement, it is obligatory on the Court to send copy of the plaint and the documents annexed thereto. In the absence, the defendants cannot be said to at default.

4. Learned counsel further submitted that the provisions of Order VIII and Rule 1 of the Code of Civil Procedure have been held to be directory in nature as the procedure is handmaid of justice which has to give way to the substantive rights of the parties. It is not the case where the petitioners had been unnecessarily delaying the proceedings. First appearance of the petitioners was merely on 01.10.2019 and the right to file written statement was struck off on 28.01.2020. Written statement is now ready. In case one more opportunity is granted, the petitioners shall file the same without further delay. The case can also continue as per the schedule and proceed further on the date already fixed by the Court for the purpose.

5. For the view I am taking in the present petition, I do not deem it appropriate to issue notice to the respondents as the same would unnecessarily further delay not only the disposal of the present petition but the Suit as well.

6. The stand taken by the petitioners is that though their service was effected on 27.08.2019, however, the summons were served without a copy of the plaint and the documents accompanying the same. It was only on appearance of the petitioners on 01.10.2019 that the copies of the Suit and the documents were supplied. Thereafter, the counsel for the petitioners had drafted the written statement. However, the same could not be signed as petitioner No. 2 being a senior citizen of about 80 years of age was not keeping good health and had been operated upon. Now the same stands signed and can be filed without any delay.

7. As far as the period prescribed for filing the written statement under Order 8 Rule 1 CPC, is concerned, the same has been held to be directory in nature by judgments of Hon'ble the Supreme Court in Kailash v. Nanhku and others, 2005 (2) RCR (C) 379 and Surender Singh and others v. Omvati and others, 2005 (3) RCR (C) 786. It is further held therein that in exceptional circumstances the Court can extend time beyond 90 days for filing written statement so as to avoid injustice being caused to the parties.

8. In M/s. R.N. Jadi & Brothers & others v. Subhashchandra, 2007 (2) RCR (C) 139, Hon'ble the Supreme Court considered the issue. Trial Court in R.N. Jadi's ca