IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1850 of 2006 AMAR KUMAR CHOUDHARY @ BHAGWAN CHOUDHARY Versus KAPALESHWAR MANDAL & ORS ----------- 6/ 11.05.2009 Heard learned counsel for the parties. In spite of service of notice as appears validly served from the records of the present petition, non appears for Opposite Party No. 1. The present Civil Revision petition is directed against the order dated 17.7.2006 by which the petitioner who was one of the two defendants, was denied the opportunity of filing his written statement and thus contesting the suit in its entirety. However, fact is that the written statement was filed and was lying on record of the suit i.e. T.S. No. 31 of 2001 pending before the Sub Judge IV, Supaul since 20th June, 2006. The reason assigned by the learned Judge was that the petitioner had willfully not filed a written statement in spite of having appeared and had exceeded the time frame set out in the Code. Before the learned Judge, the petitioner had placed reliance on the decision rendered by the Supreme Court in AIR 2005 SC 3304 but the learned Judge observed that because there was no extension of time for filing the written statement, so, that judgment was not applicable. In spite of couching the word of provision of Order VIII Rule 1 of the Code of Civil Procedure indicting as if time frame was strict, one could go to the proviso appended thereto and could consider that it could be within the discretion of the court to extend time frame - 2 - and allow the filing of the written statement. This could be very well clear from the language of the provision “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.” The petitioner had appeared in the court below on 3rd March, 2006 and he had presented the written statement on 20th June, 2006, a bit beyond the period of ninety days but one could understand that in a remote area like Supaul, one could not find an Advocate as diligent and efficient as to preparing the written statement of a suit in time. Discretion has to be applied reasonably considering the circumstances surrounding the particular litigant and the technicalities of time frame are never to be allowed to come in so as to curtailing an appropriate defence of a particular person. Keeping that in mind, I direct the court below to allow the written statement to be treated as part of the record and allow the petitioner to contest the suit in light thereof. The impugned order is accordingly set aside in the light of the above observation. Civil Revision petition is disposed of in the above light. Anil/ (Dharnidhar Jha, J.)