ASOPA, J. - (1.) BY the instant writ petition the petitioner has challenged the order dated 14. 2. 2005 passed by the Additional District & Sessions Judge (Fast Track) No. 1, Baran whereby the application for taking the written statement filed on 28. 9. 2004 has been rejected on the ground that the provisions of Order-8 Rule-1 of C. P. C. are mandatory and in the application no reason has been assigned as to why the Court should ask him to file the written statement, whose aim is also to delay the proceedings.
(2.) BRIEFLY stated the relevant facts of the case are that the plaintiff-respondent No. 2 filed a civil suit for partition of ancestral property described in para No. 1 of the plaint. The Trial Court has fixed the date 22. 9. 2004 for filing the written statement but on 22. 9. 2004 it was recorded that the service on the petitioner-defendant No. 1 was effected on 12. 3. 2004 and the written statement has not been filed. Thus, the same cannot be filed after 90 days. After recording the said part of the order- sheet, Shri Mahesh Prakash Gautam, Advocate filed the `vakalatnama' along with the written statement but neither the same was taken on record nor the date fixed for evidence i. e. , 6. 10. 2004 was changed. Subsequently, the counsel for the petitioner-defendant No. 1 filed an application under Order-8 Rule-1 and 9 read with Section 151 CPC for taking the written statement on record. The respondent-plaintiff filed reply to the said application and submitted that the written statement cannot be taken on record after expiry of 90 days and the Court is free to pass the judgment under Order-8 of the CPC. The Trial Court hearing both the parties has held that the provisions of Order-8 Rule-1 of C. P. C. are mandatory and in the application no reason has been assigned as to why the Court should ask him to file the written statement, whose aim is also to delay the proceedings. The submission of the counsel for the petitioner-defendant No. 1 is that the Supreme Court as well as this Court has held that the provisions of Order-8 Rule-1 CPC are directory and further having extended the time beyond 90 days vide orders dated 25. 8. 2004 and 13. 9. 2004 to 22. 9. 2004, it is not open for the Court to say that the written statement has not been filed within the extended period of 90 days, otherwise the petitioner- defendant No. 1 who was relying on the order-sheets dated 25. 8. 2004 and 13. 9. 2004, will suffer for not fault on his part. The further submission of the counsel for the petitioner- defendant No. 1 is that on 22. 9. 2004 after writing the main order-sheet, counsel for the petitioner-defendant No. 1 before the Trial Court has filed written statement along with his `vakalatnama' on 22. 9. 2004 and a note to the aforesaid effect was appended on the order-sheet of 22. 9. 2004. In such circumstances, his application for taking the written statement on record ought to have been allowed. In support of his submissions, the counsel for the petitioner has relied on the judgments of this Court in Lala Ram & Ors. vs. Civil Judge (Sr. Division) Dantaramgarh & Ors. , 2004 WLC (Raj.) UC 580 and Rameshwar Lal & Anr. vs. Dayanand & 7 Ors. , 2005 (3) WLC (Raj.) 237. In the later judgment of this Court, the judgment of the Supreme Court in Kailash vs. Nanhku & Ors. reported in (2005) 4 SCC 480 = RLW 2005 (2) SC 341 has been followed. There are two other judgments of Hon'ble the Supreme Court on the same issue i. e. , Rani Kusum (Smt.) vs. Kanchan Devi (Smt.) and Others, (2005) 6 SCC 705 = RLW 2005 (4) 2244 SC and Shaikh Salim Haji Abdul Khayumsab vs. Kumar and Others, (2006) 1 SCC 46 = 2006 (1) RLW 303 SC wherein also Kailash vs. Nanhku & Ors. (supra) and Rani Kusum (Smt.) vs. Kanchan Devi (Smt.) and Others (supra), cases have been followed and it was further held that negative language implying mandatory character is not conclusive of the matter and the maxims actus curiae neminem gravabit and lex non cogit ad impossibilia will also apply. The submission of the counsel for the respondent-plaintiff is that although the provisions of Order-8 Rule 1 CPC are held to be directory but no sufficient reason has been given for filing of the written statement beyond the extended period of 90 days. I have gone through the record of the writ petition and further considered the rival submissions of the parties.
(3.) THE relevant order-sheets dated 25. 8. 2004, 13. 9. 2004 and 22. 9. 2004 are reproduced hereunder for ready reference: 25-8-2004 *** A bare perusal of which would reveal that on 25. 8. 2004 the case was fixed for written statement of the petitioner-defendant No. 1 and the last date for filing the written statement was 22. 9. 2004 but while drawing the order-sheet dated 22. 9. 2004, the Court has ignored the order-sheets dated 25. 8. 2004 and 13. 9. 2004. The relevant provisions of Order-8 Rule-1 of CPC are as follows: [1. Written statement. The defendant shall, within thirty days from the date of service of summons on Him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. ;