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2018 DIGILAW 2302 (JHR)

Vivek Gaurav Minz v. Nirmala Pushpa Tirkey @ Nirmala Prakash

2018-10-22

SHREE CHANDRASHEKHAR

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JUDGMENT Shree Chandrashekhar, J. - The petitioner, who is the plaintiff in OS No.20 of 2016, is aggrieved of order dated 03.04.2017 by which the defendant no.1 has been permitted to file written statement after she was debarred from filing written statement vide order dated 28.02.2017. 2. What appears from the materials produced in the present proceeding is that the defendant no.1, who had appeared through her counsel on 20.08.2016, was debarred from filing written statement vide order dated 28.02.2017. The defendant no.1 has taken a stand that for want of some relevant documents she could not file her written statement of defence within the period prescribed under Order VIII Rule 1 CPC. On 03.04.2017 alongwith the written statement, she filed an application seeking condonation of delay of 131 days for filing the written statement. This application has been opposed by the plaintiff saying that it was immaterial. 3. The petitioner who seems to have raised a serious objection to the permission granted to the defendant no.1 for filing her written statement beyond the statutory period of thirty days, which may be extended but not beyond ninety days under proviso to Order VIII Rule 1 CPC, has not cared to remove the defects as pointed out by the registry in the last 17 months; the writ petition was filed on 11.05.2017. 4. Order VIII Rule 1 CPC provides that within thirty days of service of summons the defendant shall file his written statement of defence and this period of thirty days may be extended to ninety days, but then by now it is well-settled that the period provided under Order VIII Rule 1 CPC is binding on the parties but not on the court [" Rani Kusum (Smt.) Vrs. Kanchan Devi (Smt.) & Ors , (2005) 6 SCC 705 ."] . It is also well-settled that the period provided under Order VIII Rule 1 CPC is directory and not mandatory and in appropriate cases for the reasons to be recorded in writing the court may permit a defendant to file written statement beyond the statutory period provided under Order VIII Rule 1 CPC. It is not the case pleaded by the petitioner that there was gross negligence on the part of defendant no.1 or her counsel [Para 44 of " Kailash Vrs. Nanhku and Others. , (2005) 4 SCC 480 " ]. It is not the case pleaded by the petitioner that there was gross negligence on the part of defendant no.1 or her counsel [Para 44 of " Kailash Vrs. Nanhku and Others. , (2005) 4 SCC 480 " ]. At the same time, it also does not appear that the petitioner has controverted the stand taken by the defendant no.1 that she was required to collect some relevant documents before her written statement of defence could be prepared. Normally, parties to the suit must be permitted to contest the suit on merits by leading evidence, oral as well as documentary. Moreover, the suit is for specific performance of agreement dated 03.05.2013, subject matter of which is immovable property. Apparently, the defendant no.1 has a valuable stake involved in the suit. 5. Viewed thus, and for the reasons indicated hereinabove, finding no infirmity with the impugned order dated 03.04.2017 the writ petition is dismissed.