1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Munna & Anr. Versus Mohd. Anwar & Anr. S.B. CIVIL WRIT PETITION NO. 1886/2008 ....... Date of Order : 07/05/2008 PRESENT HON'BLE MR. JUSTICE H.R.PANWAR Mr. Farzand Ali for the petitioners. Mr. Manoj Bhandari for the respondents. BY THE COURT:- By the instant writ petition under Articles 226 and 227 of the Constitution of India, the petitioners seek quashing of order Annex.5 dated 4.1.2008 passed by respondent No.2 Rent Tribunal Bikaner (for short 'the Tribunal' hereinafter) and a direction to respondent No.2 Tribunal to take on record the written statement Annex.3 filed by the petitioners. I have heard learned counsel for the parties. 2 The facts and circumstances giving rise to the instant writ petition are that the respondent No.1 filed a petition Annex.1 before the respondent No.2 Tribunal under Section 9 of the Rajasthan Rent Control Act, 2001 (for short 'the Act of 2001' hereinafter) being Case No.78/2001 for eviction of the petitioners from the premises. The notices were served on the petitioners and Mr. Vipinchandra Goyal, Advocate filed power on 31.8.2007 on behalf of the petitioners. However, the petitioners failed to file the written statement within 45 days from the date of service of summons and therefore, by order dated 16.10.2007, the respondent No.2 closed the filing of written statement. The summons were served on the petitioners on 29.8.2007 and the period of 45 days for filing written statement came to an end on 13.10.2007. However, subsequent thereto, the petitioners filed the written statement almost after a delay of 30 days. The respondent No.2 Tribunal declined to take on record the written statement. Hence this petition. It is contended by learned counsel for the petitioners that the petitioner Munna fell ill and suffered serious ailment, therefore, since 05.10.2007 to 7.11.2007, he continuously remained ill and under treatment and thereafter he went to Ahmedabad. He came back on Deepawali festival and contacted the counsel and counsel informed that the written statement 3 has been closed. An application was moved before the Rent Tribunal for taking on record the written statement along with the certificates issued by the Medical authorities regarding ailment of the petitioner. Learned counsel appearing for the respondent submits that though the provision of the Act of 2007 prescribing the period of limitation of 45 days for filing written statement is not mandatory as has been held by Hon'ble Supreme Court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India reported in AIR 2003 SC 189 is directory but in view of the decision of Hon'ble Supreme Court in Kailash Vs. Nanhku and Ors. (2005) 4 SCC, 480 and a recent decision of Hon'ble Apex Court in M/s Aditya Hotels (P) Ltd. Vs. Bombay Swadeshi Stores Ltd. and Ors. 2008 (1) W.L.C. (SC) Civil, 300, the tenant taking extension of time for filing written statement has to show the existence of reasons which prevented him to file the written statement within 45 days from the date of service of summons and such reasons are to be recorded in writing by the trial court. According to learned counsel for the respondent, there appears to be no such reason and therefore, the trial court was justified in not accepting the written statement filed by the petitioners. In Kailash Vs. Nanhku and Ors. (supra) Hon'ble 4 Supreme Court held that Order 8 Rule 1 and proviso thereto as amended by Act 22 of 2002 (w.e.f. 1.7.2002) are directory in character and not mandatory. It was further held that though they cast an obligation on defendant to file a written sttement within the time prescribed therein, the provisions do not deal with nor specifically take away the power of the court to take a written statement on record, though filed beyond the time as provided for therein. However, the fact that Order 8 Rule 1 CPC and proviso thereto, as amended, have been held to be directory may not be understood as nullifying the entire force and impact, the entire life and vigour, of the provision in its amended form and therefore, the Hon'ble Apex Court clarified categorically that ordinarily the time schedule contained in the provisions is to be followed as a rule and departure therefrom would be by way of exception only. In M/s Aditya Hotels (P) Ltd. Vs. Bombay Swadeshi Stores Ltd. and Ors. (supra) relying on the decision in Kailash Vs. Nanhku and Ors. (supra), Hon'ble Supreme Court held that the extension of time sought for by the defendant from the Court whether within 30 days or 90 days as the case may be, should not be granted just as a matter of routine and merely for the asking, more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the 5 court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order 8 Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended. In the instant case, the petitioners have explained the circumstances which prevented them to file the written statement within the period of 45 days from the date of service of summons as the petitioner fell ill and remained under treatment for which treatment record and prescriptions have been filed by the petitioners along with the application seeking extension of time and taking the written statement on record. In my view, the petitioners have shown the reasons which are exceptional and non-filing of written statement within the period of 45 days occasioned by such reasons which can be said to be beyond the control of the petitioners and therefore, in the interest of justice and to prevent the grave injustice which would occasion if the written statement is not taken on record, the extension of time sought by the petitioners deserves to be granted, however, subject to costs. Consequently, the writ petition is allowed. The orders 6 impugned dated 16.10.2007 and 4.1.2008 (Annex.5) closing the written statement and declining to take the written statement on record are set aside and it is directed that the respondent No.2 Tribunal shall take on record the written statement filed by the petitioners provided the petitioners pay a sum of Rs. 2000/- as costs to the respondent No.1. (H.R.PANWAR),J. rp 7 S.B.Civil Misc. Stay Petition No. 3359/2008 In S.B. Civil Writ Petition No. 1886/2008 (Munna & Anr. Vs. Mohd. Anwar & Anr.) Date of order : 07.05.2008 HON'BLE MR.H.R.PANWAR,J. Mr. Farzand Ali for the petitioners. Mr. Manoj Bhandari for the respondent. Since the writ petition itself has been allowed, the stay petition stands disposed of. (H.R.PANWAR), J. rp