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Code of Civil Procedure, 1908-Order VIII, Rule 1 (As amended by Code of Civil Procedure (Amendment) Act, 2002-Written statement filed beyond maximum period-Acceptance of-Held: It was in discretion of court-Amended Order VIII, Rule 1 though worded in negative form, was not mandatory keeping in view the context in which it was enacted-Neither the power of Court to take on record written statement filed beyond time is specifically taken away nor consequences of non-extension of time specifically provided for. Respondent was served with summons issued by the trial court. They filed their written statement beyond 90 days, which was the magimum period allowed, apart from the normal period of 30 days from the date of service of summons. Appellant objected to same. However, Trial Court accepted the written statement, and High Court dismissed appeal of appellant against same. Hence the present appeal. Appellant contended that after substitution of Order VIII, Rule 1 by Code of Civil Procedure (Amendment), 2002, the court had no discretion to extend the period for filing the written statement beyond the maximum period. =Dismissing the appeal, the Court HELD : 1. Order VII, Rule 1 after the amendment casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the Court to take the written statement on record though filed beyond the time as provided for. Further, the nature of the provision contained in Order VIII Rule 1 is procedural. It is not a part of the substantive law. Substituted Order VIII, Rule l intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried. [756-C, D, E] Sushil Kumar Sen v. State of Bihar, [1975] 1 SCC 774; Shreenath and Anr. v. Rajesh and Ors., AIR (1998) SC 1827, referred to. Blyth v. Blyth, 1966 1 All. E.R. 524 (HL), referred to. 2. It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order VIII is circumscribed by the words `shall not be later than ninety days’ but the consequences flowing from non-extension of time are not specifically provided though they may be read by necessary implication. Merely because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in negative form. [757-E, F] Salem Advocate Bar Association, Tamil Nadu v. Union of India, JT (2005) 6 SC 486, followed. Kailash v. Nankhu and Ors., [2005] 4 SCC 480, relied on. Nishakant Pandey and Alok Kumar for the Appellant. Aman Lekhi, Rajiv Ranjan Dwivedi, Nagendra Kumar, Harish Pandey, Syamel Kumar, Rakesh Kumar and Jaspreet Singh Rai for the Respondents.
CASE NO.: Appeal (civil) 5066 of 2005 PETITIONER: Smt. Rani Kusum RESPONDENT: Smt. Kanchan Devi and Ors. DATE OF JUDGMENT: 16/08/2005 BENCH: ARIJIT PASAYAT & H.K. SEMA JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 377 OF 2005) ARIJIT PASAYAT, J. Leave granted. Order passed by a learned … Continue reading
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