NARENDRA NATH TIWARI,J. - (1.) IN this writ application the petitioners have prayed for quashing the order dated 10.05.2005 whereby learned Court below has refused to accept the written statement filed by the defendants -petitioners on the ground that the same was filed beyond the period prescribed by the amended provision of the Code of Civil Procedure as also for quashing the order dated 23.02.2006 whereby learned Court below has refused to recall the earlier order dated 10.05.2005.
(2.) IT has been stated by the defendants -petitioners that they had appeared on 09.09.2004 and filed a petition on the same day praying for a direction on the plaintiff to supply a legible copy of the plaint. The petition was entertained and the plaintiffs were directed to file a legible and visible copy of the plaint. It has been submitted that the copy of the plaint was supplied on 23.11.2004 and on the petition of the defendants, time was granted for filing written statement. The petitioners, thereafter, filed their written statement on 13.01.2005 within the time fixed by the Court. Subsequently, a petition was filed for acceptance of the written statement filed by the defendants No. 2 to 6. The said petition was contested by the plaintiffs. By the impugned order dated 10.05.2005, learned Court below has refused to accept the written statement on the ground that the same was filed beyond the period prescribed by the amended provision of the Code of Civil Procedure. The petitioners filed an application for recalling the said order dated 10.05.2005, but the same has been rejected by order dated 23.02.2006. 1) JLJR 321. Learned Counsel submitted that now it is well settled that the provision made under Order VIII Rule 1 of the Code of Civil Procedure is directory in nature and not mandatory and the Court in appropriate cases has got power to accept the written statement filed even beyond the time prescribed under Order VIII Rule 1 of the Code of Civil Procedure. Learned Counsel relied on a decision of the Supreme Court in Kailash v. Nanhku , and in Rani Kusum (Smt.) v. Kanchan Devi (Smt.) and Ors. . Learned Counsel submitted that the Court below failed to appreciate the said legal position and has erroneously refused to accept the written statement filed by the petitioners.
(3.) MR . Rajeev Ranjan Mishra, learned Counsel appearing for the respondents, on the other hand, submitted that though the summons were served earlier on the petitioners, they chose to appear belatedly and deliberately filed an application for a direction to supply a legible copy of the plaint though the plaint supplied alongwith summons was clear and legible. Learned Counsel submitted that granting time and fixing 13.01.2005 for filing written statement was contrary to the amended provision of Order VIII Rule 1 of the Code of Civil Procedure and under the cover of the said order, the defendant can not derive any benefit against the provision of law. Learned Counsel further submitted that the law relating to filing of written statement has been amended with some object and if the defendants -petitioners are allowed to file written statement belatedly without any limitation, the very object of the amended provision shall be frustrated. Learned Counsel relied on a decision of the Supreme Court in Salem Advocate Bar Association v. Union of India and submitted that the extension of time cannot be made in a routine manner. The time can be extended only in exceptional cases. While extending the time, the Court should consider that a time limit has been fixed by way of amendment with some object.;