- (1.) BY way of this writ petition, the petitioners have implored to quash and set-aside the order dated 7th January, 2003 rendered by Civil Judge (Jr. Division), Dudu, District Jaipur, whereby the opportunity of the defendant-petitioners for filing written-statement was closed.
(2.) HAVING heard the learned counsel for the parties, it is noticed that Order VIII Rule 1 of Civil Procedure Code contemplates filing of written-statement within a period of 30 days from the date of service of summons and if the defendants fail to file the same within the said period of 30 days, they could be allowed to file the same on such other day but not later than ninety days from the date of service of summons. The learned trial court is found to have closed the opportunity of filing the written-statement on the ground that the defendants had not filed the written-statement within a period of 90 days, but a bare perusal of the order reveals that the service was effected on the petitioners-defendants on 3rd September, 2002 and after the service of summon on defendants Mr. P.L. Chaudhary filed power on their behalf. If the Court was so particular about the mandate of law, why did it give 126 days' time to file the written-statement. When the Court itself had flouted the provisions of law by granting adjournment of 126 days for filing the written-statement, then what made the Court to close the opportunity for filing written-statement. The object behind substituting Order VIII Rule 1 of Civil Procedure Code in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court, faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried. In the case of Kailash Versus Nanhku and others reported in 2005 (4) SCC 480, the Hon'ble Apex Court observed as under: the provisions spells out a disability on the defendant: a careful reading of the language in which Order 8 Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Though the language of the proviso to Rule 1 Order 8 CPC is couched in the negative form, it does not specify any penal consequences flowing from the non-compliance; however, the consequences of non-compliance may be read in by necessary implication. The provision being in the domain of the procedural law and considering the object and purpose behind enacting Rule 1 of Order 8 in the present form and the context in which the provision is placed, it has to be held to be directory and not mandatory. Moreover, under Order 8 Rule 9, in spite of the time limit appointed by Order 8 Rule 1 having expired, the court is not powerless to permit a written statement being filed if the court may require such written statement. HONOURABLE Apex Court has further held that: however, the fact that Order 8 Rule 1 CPC has been held to be directory may not be misunderstood as nullifying the entire force and impact the entire life and vigour of the provision. In the instant case albeit, time schedule contemplated by Order VIII Rule 1 of Civil Procedure Code was granted to the petitioners-defendants for filing the written-statement, but a grave injustice would be occasioned to them if they are not allowed to file the written-statement of their defence. Hence to meet the ends of justice, one last opportunity may be granted to the petitioners-defendants to file the written-statement at the cost of Rs. 1000/-. For the reasons stated above, the writ petition is allowed and one last opportunity is granted to the petitioners-defendants to file the written statement with the cost of Rs. 1000/-.
(3.) THE petitioners are directed to file the written-statement in Civil Suit No. 76/2002 pending before the Civil Judge (Jr. Division) Dudu, District Jaipur on or before 30th May, 2011. If they fail to file the written-statement on or before this date, no further opportunity, whatsoever, shall be granted to them. Learned trial court is directed to dispose of the suit as early as possible since it has been pending since long. Since the writ petition has been decided, the stay application, does not survive and the same stands disposed of. ;