IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.404 of 2007 MRITUNJAY SRIVASTAVA @ MRITUNJ Versus SABITA PANDEY & ANR ----------- Advocate for the Petitioner :- Mr. Nagendra Rai, Advocate Mr. Navin Nikujy, Advocate Advocate for the Opposite Party :- Mr. Satya Prakash Mr. Bindhychal Singh 2 27.04.2009 Heard learned counsel for the petitioner and learned counsel for the opposite parties. This revision application has been filed by the defendants against the order dated 6.12.2006 passed by learned Sub-Judge VII, Chapra in Title Suit No. 160 of 2006. By the said order the learned court below has allowed the petition of the plaintiff for debarring the defendants from filing the written statement, in view of the expiry of the period prescribed of the Order VIII, Rule 1 of the C.P.C. By the said order, the court below has also rejected the petition of the defendant for allowing them to file the written statement has rejected the written statement filed with the petition. Learned counsel for the petitioner submits that the time limit fixed by Order VIII, Rule 1 of the C.P.C is not mandatory as has been held by the Hon’ble Supreme Court in the judgment reported in 2009(1) PLJR page 286 S.C (Sambhaji & Ors. Vs. Gangabai & Ors.) Therefore, the court below should have allowed the petition of the defendant for accepting the written statement and should have rejected the petition of the plaintiff for debarring the defendants from filing the written statement. He submits that defendant had filed the petition along with the written statement, prior to the order passed on the - 2 - petition of the plaintiff and therefore, they have not disclosed sufficient reasons for delay in filing of the written statement. Learned counsel for the opposite party submits that in filing of the written statement the delay has to be condoned as an exception and only on sufficient reasons to be shown by the defendant and accepted by the court. In support of his statement, he relies upon a judgment of the Hon’ble Supreme Court reported in the case of Kailash Vs. Nanhku and Ors. 2005 (3) PLJR 241 S.C. and particularly refers to paragraph 41 to 45 of the said judgment. A perusal of the judgment relied upon by the opposite party also makes it clear that the provision of Order VIII, Rule I of the C.P.C. is not mandatory and therefore, as per the two judgments of the Hon’ble Supreme Court, the trial court has discretion in appropriate cases, for sufficient reasons to be shown, to accept the written statement filed by the defendant beyond the period prescribed by Order VIII, Rule 1 of the C.P.C. It is true that the defendant did not disclose the reasons in his petition for late filing of the written statement which has been noticed by the learned court below also in its order. In the circumstances although the order of the learned trial court is correct in law but since the Hon’ble Supreme Court makes it open to the trial court to consider late filing of the written statement and to condone the delay on sufficient reasons for delay being shown, it will be appropriate that defendants are given one more opportunity to file a petition, giving details of reasons due to which the written statement could not be filed in time. If such a petition is filed, the - 3 - court below shall consider the same and if it finds it to be reasonable, shall allow the petition and accept the written statement in accordance with law. Learned counsel for the opposite party submits that some cost may be imposed in the matter. This court leaves it to the discretion of the learned court below to award any reasonable cost for accepting the written statement of the defendant. While consider the said petition, the learned court below shall keep in mind that the judicial authorities should always make efforts to decide a lis on merits which will be in consonance with principles of natural justice and fair play. With the above observations and directions, the revision application is disposed of. Kundan (J. N. Singh, J.)