@JUDGMENTTAG-ORDER
P.K. Balasubkamanyan, C.J.@mdashHeard both sides.
2. The defendant failed to file a written statement within 90 days of entering appearance in the suit. On. 4.11,2003. he was given time to file his
written statement. He did not file the written statement. The plaintiff thereupon filed an application praying that the defendant be debarred from
filing a written statement, since the defendant had not filed a written statement within the time prescribed by Order VIII Rule 1 of the CPC and
even within the time allowed by the Proviso to that Rule. The defendant filed an objection to this petition by submitting that he had filed a written
statement on the previous day and that the written statement may be accepted, since he had filed the written statement on the date to which the
case was adjourned by the Court on 14.1.2004. The Court below rightly noticed that the mere adjournment of the suit to another day, did not
mean an extension or fixation of time for filing the written statement and the defendant not having adhered to the period prescribed by Order VIII
Rule 1 of the Code of Civil Procedure, the written statement filed beyond 90 days could not be accepted. Thus, the prayer of the plaintiff was
accepted and the defendant was debarred from filing a written statement.
3. When this proceeding under Article 227 of the Constitution of India was filed, while admitting it, I also directed that a sum of Rs. 1,000/- should
be deposited by the defendant in this Court as a condition for stay of further proceeding in the Title Suit. This was by way of a costs thrown away
with the object of directing the same to be paid to the plaintiff-respondent, when he appeared, as a condition for accepting the written statement
filed eight days after the period of 90 days fixed by the Order VIII, Rule 1 of the CPC read with its proviso. Today, when the matter came up,
counsel for the plaintiff, the respondent herein, submitted that Order VIII, Rule 1 of the Code was mandatory and the Court had no discretion to
go beyond the period of 90 days mentioned in the Proviso to Order VIII. Rule 1 of the CPC and hence the order of the Court below did not call
for any interference, The order passed was well within the jurisdiction of the Court. Counsel for the defendant-petitioner pointed out that the
written statement was filed on 10.2.2004, the date the suit stood adjourned to and it was in the bona fide belief that it would be enough if the
written statement was filed on that dated. He also submitted that it would be very harsh if the defendant is debarred from filing a written statement
in the circumstances, considering the nature of the dispute between the parties and the issues involved in the suit.
4. It is true, as has been held by the Karnataka High Court in A. Sathyapal and Others Vs. Smt. Yasmin Banu Ansari and Another, . that the time
fixed by the Order VXII. Rule 1 of the CPC subject to its proviso, is mandatory and the power, if any, available to the Court for extension of time,
would be very limited, if not altogether denied, if he go by the words of Order VIII Rule 1 of the Code of Civil Procedure. On an examination of
that decision, I find that the Court has also taken the view that since the outer time limit for filing a written statement is fixed by Order VIII, Rule 1
of the Code and not by any order of Court, the power extension available u/s 148 of the Code. subject to the limitation introduced therein by the
amendment, cannot be exercised. In a way, the decision of the Karnataka cannot be said to be not justified, taking note of the purpose with which
amendment to Order VIII, Rule 1 of the CPC was made. But. at the same time, is it necessary to denude the Court dealing with a (is of even a
limited power of granting some time to a defendant for filing a written statement in an appropriate case? No doubt, when the Parliament expressed
an intention that the provision in that behalf must be followed, the Court has necessarily to proceed on that basis. But at the same time, when the
power of the Court to extend some sort of a locus paenitentiae to a defendant is saved by Section 148 of the Code of Civil Procedure, should the
Court be deprived of that discretion? I think that on a balancing of all aspects and considering the harsh consequence that arises out of barring a
defendant from filing a written statement on the ground that he has not filed it within 90 days of the receipt of summons the Court must be held to
have that limited power if the defendant shows sufficient cause for extending the time beyond 90 days but within the limits of the proviso to Section
148 of the Code.
5. Even though an outer limit may be fixed by Order VIII. Rule 1 of the CPC in the matter of filing a written statement, normally it is the Court, that
by an order of its own, fixes the actual time for filing a written statement, no doubt, within the period contemplated by Order VIII, Rule 1 of the
Code. When a Court fixes the time for doing something, the Court has normally the power to extend that time and that power is saved by Section
148 of the Code of Civil Procedure. That power u/s 148 of the Code was unlimited, until it was curtailed by the recent amendment brought in
force on 1.7.2002. By that amendment, the power to extend time u/s 148 of the Code has been limited to one month. It appears to me that in the
interests of Justice and on a harmonious construction of Order VIII. Rule 1, and Section 148 of the Code, it is possible to hold that even in a case
where the written statement has not been filed within 90 days of receipt of summons by a defendant, in an appropriate case, on his showing good
cause, the Court can extend the time beyond the period of 90 days but limited to 30 days therefrom. In other words, the Court cannot , in any
event, extend the time for filing a written statement beyond 120 clays of the receipt of the summons by the defendant. But that would not mean that
in every case the Court must automatically extend the time or can extend the time beyond the 90 days, The Court can do so only in those cases
where good cause is made for not adhering to the time schedule fixed by Order VIII Rule 1 of the CPC as controlled by the proviso to that Rule.
To that extent, I am inclined to deviate from the ratio of the decision of the Karnataka High Court, in the decision referred to above.
6. In the case on hand, the parties were fighting the interim application for injunction and the Court adjourned the suit to 10.2.2004. On that date,
the defendant filed a written statement, no doubt, eight days beyond the period of 90 days. If the defendant pleads that he misunderstood the order
of the Court as fixing the time for filing the written statement as 10.2.2004, it cannot be said that there was no bona fides in entertaining such a
plea.
7. In this situation, I am of the view that the Court below could have extended the time for filing the written statement by eight days and accepted
the written statement that was filed. This, of course, is in view of my interpretation of Order VIII Rule 1 read with Section 148 of the Code of Civil
Procedure, as indicated hereinbefore. But, I think that in the circumstances, the plaintiff who has been dragged to this Court unnecessarily, is
entitled to be compensated. Therefore, I direct that the sum of Rs. 1,000/- which has been deposited by the defendant in this Court as per the
order of this Court on 25.6.2004, should be permitted to be withdrawn by the plaintiff towards his costs. I, therefore, allow this writ petition, set
aside the order of the Court below and direct that Court to accept the written statement filed by the defendant. I order that the sum of Rs. 1000/-
deposited by the defendant-petitioner in this Court, be disbursed to the plaintiff-respondent unconditionally towards his costs of this proceeding.
