C.R. No. 485 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 485 of 2011 Date of decision : 24.1.2011 Rajinder Singh Saini ......Petitioner Versus Sat Parkash Goel .......Respondent ***** CORAM: HON'BLE MRS. JUSTICE SABINA Present : Ms. K.K. Ghumman, Advocate, for the petitioner. **** SABINA, J. Plaintiff-respondent has filed a suit for recovery of ` four lac on the basis of agreement to sell dated 19.7.2006. Notice was issued to the petitioner-defendant. Vide order dated 20.9.2010, the defence of the petitioner was struck off as he had failed to file the written statement within a stipulated period of 90 days. Hence, the present petition. Learned counsel for the petitioner has submitted that the written statement could not be filed within 90 days of service of summons as the petitioner had gone out of station and could not give requisite instructions to his counsel. Now the case is listed for 31.1.2011 for plaintiff's evidence. Petitioner will file the written statement on the said date. In the case of Salem Advocate Bar Association, Tamilnadu Vs. Union of India, AIR 2005, SC 3353, it was held as under :- C.R. No. 485 of 2011 2 “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 regard to 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 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 C.R. No. 485 of 2011 3 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 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 C.R. No. 485 of 2011 4 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, as per the above provision, written statement should be filed within 30 days from the date of service of summons on the defendant or the said period as may be extended by the Court for reasons to be recorded in writing but which shall not be later than 90 days from the date of service of summons. The said provisions is though mandatory but is more directory in nature. In case the petitioner is allowed to file the written statement, the dispute between the parties will be disposed of on merits. The written statement could not be filed within the stipulated period as the petitioner had gone out of station. Moreover, the other side can be compensated with costs. Accordingly, this petition is allowed. Impugned order dated 20.9.2010 is set aside. The petitioner is permitted to file the written statement on 31.1.2011, subject to payment of ` 5,000/- as costs. (SABINA) JUDGE January 24, 2011 Anand