- (1.) The present writ petition has been preferred under Article 227 of the Constitution of India mainly against the order passed by the learned Subordinate Judge -I, Dumka dated 10th September, 2007 in Title Suit NO.5 of 2007, whereby, the present petitioner (original defendant) is not allowed to file his written statement. 2. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, it appears: (i) that the present respondents are the original plaintiffs, who have instituted Title Suit No. 5 of 2007 and the present petitioner is the original defendant. (ii) from the facts of the present case, that the present petitioner (original defendant) filed his appearance before the trial court on 20th April, 2007. Thus, this to an initial point for filing of the written statement. (iii) that thereafter, on 27th July, 2007, the original defendant tried to file written statement, but, on 27th July, 2007, the original defendant was barred from filing of the written statement. (iv) that thereafter, an application was preferred by the original defendant on 28th August, 2007 alongwith written statement and with documents to recall the order dated 27th July, 2007, with cogent and convincing reasons, stated therein, especially that the petitioner was in jail, on the basis of complain filed by the plaintiff side, present petitioner being in jail, he was helpless to give proper instructions to .his lawyer and for arranging finance and also in collecting the documents etc., this infirmity is not an ordinarily infirmity. The trial court has lost sight of this fact, which is an error apparent on the face of record. (v) that the party, who is original defendant is ready and willing to come to the court promptly and wants to file written statement alongwith documents despite the aforesaid greatest barrier that he was in jail. Trial Court ought to have appreciated that this is a good reason for extension of time to file written statement. The provision under Order VIII Rule 1 is not mandatory in nature. Court while rejecting the prayer for filing of the written statement ought to have been kept in mind the background of the party. social structure and the disability attached with the party. Sometimes, inherent disabilities like illiteracy, under developed or undeveloped areas, within the State of Jharkhand, sickness, period spent in jail, financial capabilities, non -availability of main member of the family and such other aspects, unless and until the court not knows the social background of the party, a mechanical justice may be delivered, court also ought to have kept in mind that we are not in need of mechanical justice. Justice hurried is justice buried. When any party' is coming to file written statement and if there is no deliberate delay or mala fide on the part of the party or if, there is gross negligence on the part of the party and though the party is capable and having sufficient means and then also, he is not filing a written statement, with a view to delay the disposal of the suit, in such circumstances, written statement can be denied to be tiled by the party. All aforesaid positive as well as negative circumstances, ought to be appreciated by the trial court before denial of the written statement in a suit. Suit is the first remedy available to the aggrieved party. Sometimes, defendants are also filing their counter claim. Defendant's written statement is most crucial, especially in deciding the disputes between the parties. Provision in Order VIII Rule 1 is directory in nature and not mandatory. 2005(4) SCC 480 [: 2005(4) JLJR (SC)1], especially, in paragraph nos. 27, 28, 34 and 35 which read as under: - "27. Three things are clear. Firstly, 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 withn 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 Secondly, the nature of the provision contained in Order 8 Rule 1. is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order 8 Rule 1 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 basis element of justice cannot be permitted to be buried. 28. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner, which would leave the court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J, in Sushil Kumar Sen vs. State of Bihar are pertinent: (SCC p. 777, paras 5 -6) "The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in Judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable.......... Justice is the goal of jurisprudence -processual, as much as substantive." 34. Justice G.P. Singh notes in his celebrated work Principles of Statutory Interpretation (9th Edn., 2004) while dealing with mandatory and directory provisions: - "The study of numerous cases on this topic does not lead to formulation of any 'universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject -matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft -quoted passage Lord Campbell said: 'No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for dis0bedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered'." (P.338) 'For ascertaining the real intention of the legislature', points out Subbarao, J. the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non -compliance with the provisions; the fact that the non -compliance with the provisions is or is not visited by soma penalty the serious or the trivial consequences, that flow there from and above all, whether the object of the legislation will be defeated or furthered'. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory. (pp. 339 -40) 35. Two decisions, having a direct bearing on the issue arising for decision before us, have been brought to our notice, one each by the learned counsel for either party. The learned Senior Counsel for the appellant submitted that in Topline Shoes Ltd. vs. Corpn. Bank a pari materia provision contained in Section 13 of the Consumer Protection Act, 1986 came up for the consideration of the Court. The provision requires the opposite party to a complaint to give his version of the case within a period of 30 days or such extended period not exceeding 15 days as may be granted by the District Forum. The Court took into consideration the Statement of Objects and Reasons and the legislative intent behind providing a time -. frame to file reply and held: (i) that the provision as framed was not mandatory in nature as no penal consequences are prescribed if the extended time exceed 15 days, and; (ii) that the provision was directory in nature and could not be interpreted to mean that in no event whatsoever the reply of the respondent could be taken on record beyond the period of 45 days." In view of the aforesaid decision also, an application preferred by the original defendant for filing of the written statement ought to have been allowed by recalling the order dated 27th July, 2007. 3. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, I hereby, quash and set aside the order passed by the learned Subordinate Judge -I, Dumka, dated 10th September, 2007 with a cost of Rs. 250/ -. This amount of cost shall be deposited before the trial court, and the original plaintiff is permitted to withdraw the same with proper application. 4. This writ petition is hereby, allowed, with the aforesaid observations and directions.;