Manju Goel, J.
1. This application seeks extension of time for presentation of the written statement. The defendant was served with the summons of this Court on 14.10.2005. The written statement is filed on 6.3.2006, i.e., nearly 40 days after the expiry of 90 days of the service of summons. The written statement is accompanied by a counter claim.
2. Order 8 Rule 1 of the Code of Civil Procedure (in short `CPC') requires the defendant to file his written statement within 30 days from the date of service of summons. It can be enlarged on reasons to be recorded in writing but such filing shall not be later than 90 days from the date of service of summons. Section 148 of the CPC further prescribes that where any period is fixed or granted by the court for doing any act prescribed or allowed by this Code, the court may, in its discretion from time to time, enlarge such period not exceeding thirty days even though the period originally fixed or granted may have expired.
3. The Supreme Court examined the scope of further extension of time and in the case of Kailash v. Nanhku and Ors. reported as : AIR2005SC2441 laid down the following law:
45. ...(iv) The purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1 of CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though, the language of the proviso to Rule 1 of order VIII of the CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the Procedural Law, it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by Order VIII Rule 1 of the CPC is not completely taken away.
(v) Though Order VIII Rule 1 of the CPC is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure there from would be by way of exception. A prayer for extension of time made by the defendant shall no be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case.
46. In the case at hand, the High Court felt satisfied that the reasons assigned by the defendant-appellant in support of the prayer for extension of time was good and valid. However, the prayer was denied because the High Court felt it had no power to do so. The written statements has already been filed in the High Court. We direct that the written statement shall now be taken on record but subject to payment of Rs. 5000/- by way of costs payable by the appellant herein to respondent No. 1 i.e. the election petitioner in the High Court, within a period of 4 weeks from today.
4. The High Court by a notification dated 9.1.2006 made certain amendments in the Delhi High Court (Original Side) Rules, 1967. These rules do nothing more than giving effect to the amendment. These rules do not amount to any amendment in the Civil Procedure Code and the judgment of the Supreme Court in the case of Kailash v. Nanhku (Supra) still holds good.
5. I can, thereforee, proceed to see as to how the delay has been explained. The facts alleged in the application are as under:
The husband of defendant No. 1 died on 13.6.2005. Soon thereafter the plaintiff who is the mother-in-law of defendant No. 1 filed a suit in the court of Shri V.K.Roy, Civil Judge, Delhi against her and another succession petition at Gurgaon before she could even overcome the shock of her loss. On being served with summons the defendant engaged Shri Sunil Mittal, Advocate. However, since the father of the advocate was indisposed the advocate remained busy attending to his father in the months of December, 2005 and January, 2006. The defendant also took time to gather facts for the purposes of filing written statement and had to issue a notice to the chartered accountant who was in control of financial matters of her late husband. Those facts were required for filing the written statement. The chartered accountant did not reply to her letter causing further delay in the presentation of the written statement.
6. The application is contested mainly on the ground that the court has no jurisdiction to enlarge the time and secondly on the ground that sufficient cause for extension of time has not been mentioned in the application under consideration.
7. As explained above, the law has already been laid down by the Supreme Court. The amendment of the High Court Rules and Orders has made no difference to the law laid down by the Supreme Court. Now coming to the facts, on service of summons on 14.11.2005 the defendant was required to submit her written statement by 14.11.2005. The advocate remained busy with his father in December, 2005 and January, 2006. The defendant, however, has explained that she was required to know the facts in respect of the financial matters of her husband before she could file the written statement and for this purpose she issued a notice to the chartered accountant of her husband. Since the chartered accountant did not come up with a reply, the defendant needed more time to gather facts necessary for her written statement. Thus, some vague grounds for delay have been made out.
8. The peculiarity of the case, however, is that a counter claim has been filed along with the written statement. The counter claim is like a suit. Even if the filing of the written statement is barred in this case the defendant cannot be denied her right to file a fresh suit against the plaintiff. As per Order 8 Rule 6A(2) such counter claim has the same effect as a cross suit so as to enable the court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. Even if the written statement is taken off the record as barred by time, the counter claim will have to be entertained.
9. In view of this peculiar situation, I find no useful purpose would be served by strict application of Order 8 Rule 1 of the CPC. I, thereforee, think it appropriate to allow the written statement to be presented subject to compensatory costs to the plaintiff. Hence the application under Section 148 of the CPC is allowed subject to a costs of Rs. 4,000/-.