CR No. 2722 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No. 2722 of 2011 Date of Decision: 27.4.2011. Nar Singh .......Petitioner Vs. M/s Ekta Trading Company ......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. R.S.Budhwar, Advocate for the petitioner. ..... SABINA, J. Respondent-plaintiff has filed a suit for recovery. Vide order dated 7.12.2010, the defence of the defendant was struck off. Thereafter, the petitioner moved an application before the trial court for permission to file the written statement. Vide order dated 13.4.2011, the said application was dismissed by the trial court. Hence, the present petition by the petitioner- defendant. Learned counsel for the petitioner has submitted that one opportunity be granted to the petitioner to enable him to file his written statement. After hearing learned counsel for the petitioner, I am of the opinion that the instant petition deserves to be allowed. The suit has been filed by the plaintiff seeking recovery of `. 14,41,551/-. In the case of Salem Advocate Bar CR No. 2722 of 2011 -2- Association, Tamilnadu Vs. Union of India, AIR 2005, SC 3353, it was held as under :- “21. The use of the word 'shall' in Order VIII Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word 'shall' is ordinarily indicative of mandatory nature of the provision but having regardt o the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure are hand-maid of justice and not its mistress. In the present context, the strict interpretation would defeat justice. 22. In construing this provision, support can also be had from Order VIII Rule 10 which provides that 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, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under CR No. 2722 of 2011 -3- this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to suit as it thinks fit. In the context of the provision, despite use of the word 'shall', the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII Rule 1. There is no restriction in Order VIII Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to 'make such order in relation to the suit as it thinks fit'. Clearly, therefore, the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend CR No. 2722 of 2011 -4- the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII Rule 1.” Order VIII Rule 1 of the Code of Civil Procedure reads as under :- “1. Written Statement.- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty 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 in writing, but which shall not be later than ninety days from the date of service of summons.” Thus, the petitioner was required to file the written statement within 30 days from the date of service of summons on him and the said period may be extended by the court for reasons to be recorded in writing but the same shall not be later than 90 days from the date of service of summons. The said provision is though mandatory but is more directory in nature. In case, the petitioner is allowed to file his written statement, the lis between the parties will be disposed of on merits. Moreover, the other side can be compensated with costs. Accordingly, keeping in view the interest of justice, this petition is allowed. The petitioner is permitted to file the written statement on or before 9.5.2011 subject to payment of CR No. 2722 of 2011 -5- `. 5,000/- as costs. (SABINA) JUDGE April 27, 2011 Gurpreet