IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 2661 of 2011 (M/S) Hem Chandra Bansal and another ….. Petitioners Versus Smt. Maya Goel and another ..… Respondents Hon’ble Tarun Agarwala, J. Heard Mr. B.D. Upadhyaya, the learned Senior Advocate assisted by Mr. Tarun P.S. Takuli, Advocate for the petitioners and Mr. J.S. Bisht, Advocate for the respondents. The petitioners are the defendants whose written statement has been rejected by the Court below under Order 8 Rule 1 of the C.P.C. on the ground that it has been presented beyond the stipulated period. It transpires that there is a delay of approximately two months in the filing of the written statement. According to the petitioners, there was no deliberate delay, inasmuch as, at the time when the written statement was being filed, it came to their knowledge that copy of the plaint that was presented to them was a different copy and, accordingly, they requested the Court to direct the plaintiff to provide a true copy of the plaint which the Court directed. Thereafter, within the stipulated time granted by the Court to file the written statement, the same was done by the defendant. Consequently, the delay of approximately two months is on account of the aforesaid facts. On the other hand, the only contention raised by the learned counsel for the plaintiff is that there was no application at the behest of the defendant in filing an application for condoning the delay and keeping the written statement on record. The provision of Order 8 Rule 1 of the C.P.C. stipulates that the written statement has to be filed within 90 days from the date of service. The Supreme Court has, however, held that the provision of Order 8 Rule 1 of the C.P.C. is not mandatory and 2 that the trial court can extend the time for filing the written statement on sufficient cause being shown. In the light of what has been stated aforesaid, the Court finds that there is no deliberate delay on the part of the defendant in prolonging the matter. The delay was on account of unforeseen circumstances as has been stated aforesaid. In Murli Manohar Vs. U.P. Sugar Company Ltd. Servahi through Deputy General Manager, 2009 (74) ALR 195, the Court held :- “The Supreme Court, however has held in the case of Ram Kusum (Smt.) Vs. Kanchan Devi (Smt.) and others, 2005 (33) AIC 85 (SC), Kailash Vs. Nanku and others, AIR 2005 (4) SCC 480, Shaikh Salim Haji Abdul Khaymsab Vs. Kumar and others, 2006 (62) ALR 316 (SC) and Salem Advocate Bar Association Tamil Nadu Vs. Union of India, AIR 2005 SC 3353, that the provision of Order VIII, Rule 1 of the C.P.C. is directory in nature, being procedural and is not mandatory and that the Trial Court can extend the time for filing the written statement on sufficient cause being shown. The Supreme Court also observed that observance of the time schedule should be the rule and departure from it can only be made on satisfactory reasons to be recorded.” In the light of the aforesaid, the Court is of the opinion that the delay is not such which cannot be compensated in terms of cost. Consequently, the impugned orders of the trial Court as well as of the Revisional Court cannot be sustained and is quashed. The writ petition is allowed. The written statement of the defendant shall be taken on record subject to the payment of cost of Rs.2,000/- which shall be paid by the defendant before the trial court within two weeks from today. (Tarun Agarwala, J.) Dated 19th December, 2011 Shiv 3