RATHORE, J. - (1.) SINCE these three writ petition involve common question of law and at the request of learned counsel for the parties, these three writ petitions are finally heard at this stage and being decided by this common order. The facts of Shiv Ram Singh's case (SBCWP No. 188/2004) are being taken as a leading case.
(2.) THE respondent No. 1 filed a civil suit No. 212/2002 before the Court of Additional District Judge No. 5, Jaipur City, Jaipur in which notices were issued to the defendants. THE petitioner- defendant was served with the notice on 10. 3. 2003. THE petitioner appeared before the Court on 20. 3. 2003 and the matter was posted on 31. 3. 2003. Again the matter was fixed on 30. 4. 2003 for filing the written statement. On that date, the petitioner defendant was not able to file written statement. Another opportunity was granted to the petitioner-defendant for filing written statement on the cost of Rs. 100/- and the matter was posted on 21. 5. 2003. On 21. 5. 2003, due to transfer of Presiding Officer, the matter was adjourned to 22. 7. 2003. In the meantime, the plaintiff moved an applications under Order 8 Rule 10 and under Section 10 of CPC praying to struck the defence of the defendant-petitioner. On 22. 7. 2003, the matter was posted for 11. 8. 2003 for filing reply to the applications. The petitioner-plaintiff filed the written statement on 11. 8. 2003. On 21. 11. 2003, the Trial Court declined to take the written statement filed by the petitioner-plaintiff and application under Order 8 Rule 10 filed by the plaintiff was party allowed to cross examine the witnesses of the plaintiff and defendant. Learned counsel for the petitioner challenged the impugned order mainly on the ground that the summon was issued to the petitioner on 10. 3. 2003 and the petitioner put his appearance on 14. 3. 2003. The written statement was filed before the Trial Court on 11. 8. 2003 within a period of 154 days and under Order 5 Rule 1 and Order 8 Rule 1 CPC as the period of 90 days was permissible for filing of written statement and under Section 148 CPC by passing proper order, the court could have further extended the above period by 30 days, on deducting this total period of 120 day, there was only a delay of just 34 days in filing the written statement by the petitioner-defendant and the same had been filed on 11. 8. 2003. The petitioner also referred the provisions of Section 148 and amended provisions of Order 8 Rule 1 of CPC. Whether these provision are mandatory or director, learned counsel placed reliance on the judgment in 2002 (6) SCC 33 (1), wherein Hon'ble Supreme Court dealing with the provisions of Section 13 (2) (a) of Consumer Protection Act has held as under :- " Time frame provided under Section 13 (2) (a) - Not mandatory-Reply filed beyond 45 days-Cannot be said to be debarred from being taken on record in any circumstances - Power to extend time - Is with rider of 15 days - Cannot be exercised repeatedly unmindful of the rider. "
(3.) WITH regard to acceptance of the written statement beyond the period of 90 days prescribed under the amended provisions of Order 8 Rule 1 of CPC, learned counsel for the petitioner placed on the judgments in 2003 (3) M. P. L. J. 506 (2), AIR 2003 Karnataka 345 (3), AIR 2003 Delhi 280 (4), 2003 (3) RLR 756 (5), 2003 (3) RLR 859 (6), & 2003 (3) RLR 860 Learned counsel for the petitioner also made the submission with regard to amendment in CPC made effective and referred a judgment in 2003 (6) SCC 675 (8), with regard to power and jurisdiction of the High Court under Article 226 & 227. Per contra, learned counsel for the respondents submitted that ample opportunities have been given to the petitioner to file the written statement, but he failed to submit the written statement within time, even the liberty was given at the cost of Rs. 100/ -. ;