Mahesh Bhagwati, J. - (1.) Challenge in this writ petition is to the order dated 17.11.2011, whereby the learned Additional District Judge (Fast Track) No.1, Beawar dismissed the application of the petitioner-defendant for condoning the delay and refused to take the written statement of defence on record.
(2.) Having reflected over the submissions made at the bar and carefully scanned the relevant material on record including the impugned orders, it is noticed that Order 8 Rule 1 Civil Procedure Code envisages that the defendant shall submit the written statement of his defence within 30 days from the date of service of summons on him. A bare perusal of the language of Order 8 Rule 1 suggests that the defendant is expected and required to file the written statement of his defence within 30 days of the service of summons only but not later than ninety days for the reasons to be recorded by the court. The object behind substituting Order 8 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.
(3.) In the case of Kailash v. 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 Civil Procedure Code 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 1ORDER8 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. The Hon'ble Apex Court has further held that: "however, the fact that Order 8 Rule 1 Civil Procedure Code 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.";