JUDGMENT Hon’ble Pankaj Mithal, J.—This second appeal was decided and was allowed by the Court vide judgment and order dated 17.4.1999. However, the aforesaid judgment and order of the High Court was set aside by the Apex Court and the matter was remanded vide judgment and order dated 29th October, 1999 passed in Civil Appeal No. Nil of 1999 on a technical ground that the appeal was decided and allowed without formulating substantial question of law. 2. On remand, upon hearing the parties the following substantial question of law was formulated by the Court on 11.9.2000 : “The only substantial question of law involved in the appeal is whether the Court below was obliged to grant further time to file written statement even after fixing a date for hearing under Order 8 Rule 10 of Code of Civil Procedure.” 3. I have heard Sri Navin Sihna, Senior Advocate assisted by Sri Siddhartha Singh learned Counsel for the appellant and Sri A.K. Shukla, learned Counsel appearing with Sri Rajiv Misra for the respondents at length. 4. The record including the order sheet of the Courts below have been perused by me. 5. The facts leading to the filing of this second appeal are that the plaintiffs original suit for recovery of Rs. 4,52,051/- as against defendants (appellants herein) was decreed under Order VIII Rule 10, CPC for non filing of the written statement within time allowed. The appeal of the defendants was also dismissed. Therefore, the defendants have come up in second appeal. 6. The record reveals that the plaint of the suit was presented on 31.5.1994 with an application by the plaintiff to sue in forma pauparis which application was allowed on 23.9.1994 and the suit was registered as Original suit No. 228 of 1994. On the registration of the suit 20.10.1994 was fixed. On this date as the defendant appellants have already appeared, the plaintiff was directed to supply a copy of the plaint with relevant documents to the defendants and the case was adjourned for 15.11.1994 for filing of written statement and for the framing of issues. On the registration of the suit 20.10.1994 was fixed. On this date as the defendant appellants have already appeared, the plaintiff was directed to supply a copy of the plaint with relevant documents to the defendants and the case was adjourned for 15.11.1994 for filing of written statement and for the framing of issues. On 15.11.1994 it was ordered to be fixed on 7.12.1994 to enable the defendant appellants to file written statement and for the purposes of framing the issues as on the said date defendants applied for preparation of the formal order of the order dated 23.9.1994 by which the plaintiffs application to sue in forma pauparis under Order XXXIII Rule 1, CPC was allowed so that they may prefer a revision against the same. On the same very date the plaintiff applied for the pronouncement of judgment under Order VIII Rule 10, CPC. The application was taken on record. On 7.12.1994 which was the next date fixed for filing of written statement and for framing of issues, the Court fixed 12.12.1994 for judgment. The case was fixed for judgment within three months of its registration. However, the judgment was ultimately pronounced on 29.4.1995 i.e., to say that it took more than four months for the Court to pronounce judgment. In the meantime, the defendant appellants vide application paper No. 36-Ga applied for recall of the order dated 7.12.1994 and for time to file written statement. It was rejected on 24.4.1995 as not maintainable. It may also be noteworthy that after the date was fixed for pronouncement of judgment an affidavit dated 19.12.1994 paper No. 44 Ga was filed by the plaintiff in support of the plaint allegation. The defendant-appellants on 23.2.1995 had further moved an application 48-Ga for the dismissal of the suit as the partnership firm of the plaintiff was not duly registered and the suit was barred by Section 69 of the Partnership Act. This application (48Ga) remained undisposed of. 7. The narration of the above facts amply reveals that the defendants were only allowed time twice for filing written statement i.e. on 20.10.1994 and 15.11.1994. No witness was examined in support of the plaint allegations. Not even an affidavit was filed in support thereof before the judgment was reserved. There is also no order under Order XIX Rule 1, C.P.C. of the Court permitting the plaintiffs to adduce evidence by way of affidavit. 8. No witness was examined in support of the plaint allegations. Not even an affidavit was filed in support thereof before the judgment was reserved. There is also no order under Order XIX Rule 1, C.P.C. of the Court permitting the plaintiffs to adduce evidence by way of affidavit. 8. In the above facts and circumstances Sri Navin Sinha, learned Counsel for the appellants contends that the Court of first instance acted in haste in reserving the judgment without allowing sufficient opportunity to the defendants to file written statement. There was no wilful or deliberate delay/default on the part of the defendant in filing the written statement, particularly, when they had applied for recall of the order of reserving the judgment and for more time for filing the written statement. Therefore, the Court in exercise of its discretion under Order VIII Rule 10 could have extended the time. Secondly, even if, the defendant appellants could not file the written statement Court was not obliged to decree the suit unless the plaint allegations were substantiated by any evidence and without recording reasons on merits for decreeing the suit. 9. In reply to the above submissions of the learned Counsel for the appellants Sri A.K. Shukla appearing for the plaintiff respondents contended that more than sufficient opportunity was given to the defendant for filing written statement, but as the same was not filed within the time allowed by the Court. Therefore, the Court rightly exercised power under Order VIII Rule 10, CPC to pronounce the judgment and thus no error was committed. The appellate Court has recorded a finding that on the basis of the affidavit paper No. 44 Ga the plaintiff has proved the plaint case and therefore also there is no error. 10. On the basis of the above submissions of the parties apart from the substantial question of law which has been framed by the Court earlier one another important substantial question of law arises in this second appeal as under: Whether the Court of first instance was competent to decree the suit merely for the reasons that the written statement was not filed without the pleadings being proved? To answer the above two questions of law as framed it is relevant to reproduce the provisions of Order VIII Rules 1, 5 and 10, CPC as they stood on the date of decision of the suit. “Or. VIII R-1. To answer the above two questions of law as framed it is relevant to reproduce the provisions of Order VIII Rules 1, 5 and 10, CPC as they stood on the date of decision of the suit. “Or. VIII R-1. Written statement.—[(1)]. The defendant shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence. (2) ........................ (3) ........................ (4) ........................ (5) ........................ (6) ....................... (7) ....................... Rule-5 : Specific denial.—(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability : Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. (2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved. (3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has engaged a pleader. (4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced. Rule-10 : Procedure when party fails to present written statement called for by Court.—Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up.” 11. A plain reading of the provision of Order VIII Rule 10 brings out that where a written statement is required to be filed and is not presented within the time permitted or fixed by the Court, the Court has two options; either to pronounce the Judgment against him or to make such order in relation to the suit as it thinks fit. Thus it is implicit that it is not at all obligatory upon the Court to pronounce the Judgment in each and every case where written statement is not filed within time allowed. This being the position, the Court in its discretion can choose either of the two options prescribed and in exercising such a discretion the Court has necessarily to be guided by the sound judicial principles and cannot act arbitrary in either pronouncing the judgment or in passing any such order as it otherwise thinks fit and proper. 12. In the case at hand, the Court in exercising its discretion to pronounce the judgment ex parte has not exercised its discretion in a proper and a rational manner. No reasons for refusing to grant further time and for the necessity to pronounce the judgment, particularly, when the suit had hardly lived for three months and only twice, time was granted to the defendant appellants for filing written statement coupled with the fact that the Court itself took more than four months in pronouncing the judgment after it was reserved. In this context it is worthy to mention that the Courts below have incorrectly recorded in the judgments that several opportunities were given to the defendant appellants for filing written statement. Such a statement of fact is ex-facie incorrect as per the record. 13. It may be noted that the provisions of Order VIII Rule 1, C.P.C. have further undergone a change vide Amendment Act No. 22/2002 w.e.f. 1.7.2002 and by proviso to Rule I it has been provided that where the defendant fails to file a written statement within a period of 30 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 but shall not be later than 90 days from the date of service of summons. Thus, it has been stipulated that the written statement has to be filed within a maximum period of 90 days from the date of service of summons. The three judges bench of the Supreme Court while interpreting the aforesaid provision in the case of Kailash v. Nanku and others, 2005(1) ARC 861 ruled that the provisions of Order VIII Rule 1 are part of procedural law and as such are directory in nature. Therefore, though ordinarily the time schedule contained therein has to be followed but the prayer for extension of time to file written statement by the defendant can be granted in exceptional circumstances as the purpose for providing time schedule is to expedite the hearing and not to scuttle the hearing. Therefore, the power of the Court to extend time for filing the written statement beyond the time schedule provided by Order VIII Rule 1 C.P.C. is not completely taken away in exceptional circumstances and even the High Court is not powerless to extend time limit for filing written statement where such a time has come to an end. 14. Notwithstanding the above, the Court of first instance could have avoided pronouncement of the judgment as the defendant-appellants have moved application for seeking further time to file written statement and for recall of the order reserving the judgment which application was erroneously rejected on a technical ground. There was yet another application of the defendant appellants 48 Ga which stated that the suit was not maintainable as the firm of the plaintiff was not registered. A perusal of the plaint reveals that there were no pleadings therein that the suit was being brought about by a registered Partnership firm. Therefore, when the suit was in the name of the firm, it was incumbent upon the Court to have gone into its maintainability and see whether same was barred by any statute more so when this fact had been brought to the notice of the Court before the pronouncement of the judgment by means of an application. 15. Thus, in my view, in the totality of circumstances the Court was not justified in exercising its discretion under Order VIII Rule 10, CPC in pronouncing the judgment and such action on its part was not only hasty but arbitrary and not in consonance with the sound judicial principles governing the exercise of discretion. 15. Thus, in my view, in the totality of circumstances the Court was not justified in exercising its discretion under Order VIII Rule 10, CPC in pronouncing the judgment and such action on its part was not only hasty but arbitrary and not in consonance with the sound judicial principles governing the exercise of discretion. Therefore, I answer first question in favour of the defendant appellants and hold that under the peculiar facts and circumstances of the present case the Court of first instance though not obliged to grant further time to file written statement to the defendant respondents but has failed to exercise its discretion in this regard in a proper and a rational manner and therefore ought to have extended time for filing written statement. 16. This takes me to the second question which has been framed. In AIR 1994 All 193 , Akttaryar Khan v. Azahar Yar Khan, this Court had an occasion to consider validity of an ex parte decree passed under Order VIII Rule 10 for non filing of written statement. In that case also the suit was decreed merely on the ground that the defendant failed to file the written statement and at the same time the plaintiff had not given any evidence in support of his case. The Court held that even if the defendant does not file written statement, the plaintiff still has to prove his case and further that the Court is not competent in the absence of positive evidence to hold that the allegations made in the plaint are correct so as to decree the suit. 17. The Supreme Court in the case of Modula India v. Kamakshya Singh Deo, 1988 (4) SCC 619 again while dealing with the provisions of Order VIII Rule 10 in a suit for eviction of the defendant held that passing of such decree for failure to file written statement is not mandatory. In the said case the defence was struck of and the suit was decreed without allowing the defendant to cross-examine the plaintiff witness. It was held that no oral testimony can be considered satisfactory or valid unless the plaintiff’s witnesses are allowed to be cross-examined. The right of cross examination cannot be a defence but rather a requirement without which the plaintiffs evidence cannot be acted upon. It was held that no oral testimony can be considered satisfactory or valid unless the plaintiff’s witnesses are allowed to be cross-examined. The right of cross examination cannot be a defence but rather a requirement without which the plaintiffs evidence cannot be acted upon. Therefore, the defendant cannot be precluded from cross-examining the plaintiff’s witnesses even though his defence has been struck of. The defendant has a right to demonstrate to the Court that the plaintiffs witnesses are not speaking the truth and that their statements are not sufficient and satisfactory. It was further laid down that the provisions of Order VIII Rules 5 and 10, CPC are of only permissible in nature, in as much as, Rule 10 gives an option to the Court i.e., “shall pronounce judgment against him or make such order in relation to suit as it thinks fit”. Such a discretion has been given despite use of the word ‘shall’. Therefore, it is not mandatory for the Court to pass a decree straightaway because a written statement has not been filed. It is a matter of discretion for the Court to exercise. 18. A similar view has been expressed by the Supreme Court in the case of Balraj Taneja and another v. Sunil Madan and another, JT 1999 (6) SC 473 wherein it has been ruled that the words “make such other order in relation to suit as it thinks fit” used in Order VIII Rule 10 are of immense significance and gives sufficient discretion to the Court either to pronounce the judgment against the defendant or to pass any other reasonable order. It has further been observed that where a written statement has not been filed, the Court should be a little cautious in proceeding under Order VIII Rule 10, CPC. In absence of the written statement it must see to it that even if the facts set out in the plaint are treated to have been admitted whether a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is only if the Court is satisfied that the fact contained in the plaint need not be proved it can conveniently pass a judgment not otherwise. 19. It is only if the Court is satisfied that the fact contained in the plaint need not be proved it can conveniently pass a judgment not otherwise. 19. The Counsel for the respondents submits that in view of the affidavit paper No. 44 Ga the appellate Court has recorded its satisfaction and therefore irregularity, if any, committed by the Court of first instance in this regard stand cured. The submission cannot be accepted under the facts and circumstances of the present case as admittedly no oral evidence in support of the plaint was adduced by the plaintiff respondents. The said affidavit is inadmissible in evidence as it was filed after the conclusion of the arguments and when the judgment was reserved without there being any Order under Order XIX Rule 1, CPC for permitting evidence on affidavit. The evidence on affidavit is not permissible under Section 3 of the Evidence Act (refer to AIR 1988 SC 1381 , Smt. Sudha Devi v. M.P. Narayanan and others) unless there is an order under Order XIX Rule 1, CPC. There is no such order and defendants were not given any opportunity to cross-examine the deponent of the said affidavit. Therefore, I am of the view that the Courts below manifestly erred in law in decreeing the suit merely for non filing of written statement without the plaint allegations being substantiated. Accordingly, the 2nd substantial question of law is also answered in favour of the defendants appellants and it is held that is not obligatory to decree the suit for mere non filing of the written statement unless the Court is satisfied that the plaint allegations stand proved by some evidence. 20. In view of my answers to the above substantial questions of law, I allow the appeal setting aside the judgment, orders and decree of the Courts below passed by IInd Addl. District Judge dated 10.12.1998 in Civil Appeal No. 27 of 1995 M/s. Castrol India Limited and another v. M/s. Kishan Ghar and O.S. No. 228 of 1994 passed by Civil Judge dated 29.4.1995 and remand the matter to the Court of first instance for decision afresh on merits. The parties are directed to appear before the Courts below on 1.9.08 with the condition that the defendant respondent shall deposit a sum of Rs. The parties are directed to appear before the Courts below on 1.9.08 with the condition that the defendant respondent shall deposit a sum of Rs. 1,00,000/- on or before the said date as a condition precedent for allowing time to file written statement which amount shall remain in custody of the Court and shall be kept in a Nationalized Bank in an interest bearing security and abide by the final decision in the suit. On such amount being deposited the Court below shall consider allowing reasonable time to the defendants appellants to file written statement and ensure expeditious disposal of the suit preferably within four months. 21. No orders as to costs. ————