IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 73 of 2008. Date of decision : May 8, 2008. M/s Pahoo Mal Jai Ram Fruit …Petitioner. Commission Agents Versus. Syalu Ram & anr. …Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge . Whether approved for Reporting ? No. For the Petitioner: Mr. Bimal Gupta, Advocate. For the Respondents: Mr. K.D.Sood, Advocate. Deepak Gupta, J (Oral) By means of this petition, the petitioner, hereinafter referred to as defendant No.1, has challenged the order dated 14.1.2008 passed by the learned Civil Judge (Sr.Div) Kinnaur camp at Rampur Bushehar, HP, rejecting the application filed by defendant No.1 and refusing to take the written statement of defendant No.1 on record. Briefly stated the facts of the case are that respondent No1, hereinafter referred to as the plaintiff, filed a suit for recovery of Rs. 2, 15,000/- from the defendants. From the material on record, it is apparent that defendant No.1 received copy of the plaint on 11.12.2006. He, thereafter put - 2 - in appearance before the trial Court and the matter was adjourned to 17.1.2007 for filing the written statement. The written statement was not filed and the time for filing the written statement was extended up to 13.3.2007. According to defendant No.1, he could not reach Rampur on 13.7.2007 since the roads were blocked due to heavy snow fall. On 13.3.2007 when a request for grant of further time was sought to file the written statement, it appears that the time was extended subject to the rights of the parties and the matter was adjourned to 16.4.2007. On 16.4.2007 the written statement was filed but an objection was raised that the same had not been filed within 90 days of service and, therefore, the same may not be taken on record. The learned trial court came to the conclusion that it is well known that even when the road from Shimla to Rampur via Narkanda is blocked, the road via Basantpur- Kingal remains open. The learned trial court also held that defendant No.1 had not placed any material on record to show that the road via Narkanda was closed. The rules of procedures are the hand maiden of justice. Procedure has to be subservient to justice. No doubt, the legislature has laid down that normally the written statement must be filed within 90 days. However, there is no absolute - 3 - bar that this time cannot be extended. In Salem Advocate Bar Association , T.N. versus Union of India, (2005) 6 SCC 344, has clearly held that the Court in exceptional circumstances has a right to extend the time. In this case on 13.3.2007. nothing was done by the Court and the matter was adjourned to 16.4.2007. On 16.4.2007, written statement was filed along with an application for extension of time. No prejudice will be caused to the plaintiff by taking the written statement on record. The finding of the learned trial Court that there was gross negligence on the part of the defendant is totally incorrect. As per the averments in the application and the affidavit filed along with, the petitioner was told at Chandigarh that the roads were closed. In case the matter was to be decided on the averments made in the application, no ground has been stated as to why the averments of the petitioner have been rejected. Otherwise, the parties should have been given an opportunity to lead evidence to prove their case. In my opinion, it would not be fruitful to spend six months or to just decide such a petty application. This time would be better served in deciding the main case itself. The law is well settled that the court - 4 - should try to hear all parties and should not deny the right to any party to put forward its case. Since the written statement has already been filed, I feel that in the facts and circumstances of the case, the written statement filed by defendant No.1 should be ordered to be taken on record. In view of the above discussion, the petition is allowed and the order dated 14.1.2008 passed by the learned Civil Judge (Sr.Div), Kinnaur camp at Rampur Bushehr is set aside and the written statement filed by defendant No.1- petitioner herein is ordered to be taken on record. This shall be subject to payment of Rs.2500/- as costs which shall be paid by the petitioner before the trial Court on the next date. In case, the costs are not paid, the written statement shall not be taken on record and the matter shall proceed accordingly. May 8, 2008. ( Deepak Gupta), J. s.