Rakesh Kumar Jain, J.
1. This revision petition is directed against order dated 16.4.2009 passed by Additional Civil Judge (Sr.Divn.) Sirsa, who had allowed an application filed by the plaintiffs to strike off the defence of the defendants on the ground that written statement has not been filed in consonance with the provisions of Order 8 Rules 1 and 5 of the Code of Civil Procedure, 1908 (for short `CPC') as it is required to be filed within 90 days but the same has been filed beyond the said period.
2. In brief, the plaintiff filed a suit for possession by way of specific performance in respect of land measuring 8 Kanals 1 marla comprised in Sq.No.360 Killa No. 5/1 (3-17), 6/2/2(4-4) Barani as per jamabandi for the year 2002-03 read with mutation No. 13876, situated at Hanumangarh Road, village Ellenabad, Tehsil Ellenabad, District Sirsa, on the basis of an agreement to sell dated 15.2.2006 alleged to have been executed by the sellers/defendants for a consideration of Rs. 9,75,000/- after taking an advance of Rs. 3,50,000/-.
3. The said suit was instituted on 1.8.2008 in which notice of motion was issued to the defendants for 19.8.2008. After appearance, the case was adjourned for 13.10.2008 for filing written statement but no written statement was filed on that day and the case was adjourned to 18.11.2008. Again no written statement was filed and the case was adjourned to 13.2.2009. On 13.2.2009 written statement was filed and was taken on record by the learned trial Court. However, in this process, period of 30 days much less the extended period of 90 days provided under Order 8 Rule 1 CPC had expired which led to the filing of an application by the plaintiff for striking off the defence of the defendants for violating the provisions of Order 8 Rule 1 CPC. The said application after contest, has been allowed by the trial Court and the written statement which has been filed and is taken on record, has been ordered to be taken of the record.
4. Learned Counsel for the petitioner has vehemently argued that impugned order is patently illegal and suffers from material irregularity as Order 8 Rule 1 CPC though couched in a language which suggests that it is mandatory to file the written statement within a period of 30 days and extended time of 90 days yet it is directory and if there is no substantial delay in filing the written statement, the defence should not have been struck off. In order to buttress his argument, he relies upon various decisions of the Supreme Court as well as of the High Court, which are as under:
(i) Sambhaji and Ors. v. Gangabai and Ors. 2009(1) RCR (Civil) 383
(ii) Smt.Rani Kusum v. Smt.Kanchan Devi and Ors. : 2005 AIR (SC) 3304
(iii) Shaikh Salim Haji Abdul Khayumsab v. Kumar and Ors. 2005 (4) RCR (Civil) 823
(iv) Zolba v. Keshao and Ors. 2008 (2) RCR(Civil) 869
(v) M/s Panjon Ltd. v. M/s Dhingra Enterprises 2007 (2) RCR (Civil) 715
(vi) Varun Electronics v. M/s Daewoo Anchor Electronic Ltd. 2006 (3) RCR (Civil) 407 and
(vii) State of H.P. and Ors. v. Pankaj Sharma and Ors. 2006 (3) RCR (Civil) 575
5. On the contrary, learned Counsel for the respondent has argued that there is no plausible explanation given by the defendant about the delay having been caused in filing of the written statement despite getting repeated opportunities, therefore, spirit of the Amendment Act by which provisions of Order 8 Rule 1 CPC has been made so stringent, should be kept in view in its letter and spirit and the defendants should not be allowed to file his written statement after the stipulated period of 90 days. In support of his argument, he relies upon a decision of the Supreme Court in the case of Mohammed Yusuf v. Faij Mohammad and Ors. 2009(1) RCR (Civil) 633.
6. I have heard learned Counsel for the parties and have perused the available record.
7. Before adverting to the rival contentions, it is worthwhile to refer to the bare provisions which are in reference:
Order 8 Rule 1 CPC
Written statement - The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:
Provided that where the defendant fails to file the written statement within the said period of thirty days, 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.Order 8 Rule 5 CPC
Specific denial - (i) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
(2)Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
(3)In exercising its discretion under the proviso to Sub-rule (1) or under Sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
(4)Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.
8. No doubt that prior to the Amendment of Code of Civil Procedure, (Amendment Act) 2000, Order 8 Rule 1 CPC was framed to the effect that defendant shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence. Meaning thereby either he should present the written statement on the date when he appears before the Court or could present the written statement as the Court permits the defendant but after the amendment, in order to curtail delay in the procedure of completion of pleadings, the period of 30 days is provided for filing written statement from the date of service of summons upon the defendant and if he fails to file written statement within the said period of 30 days then another period of 60 days is provided to file it which means that written statement could not be filed beyond the period of 90 days from the date of summons. Thus, the question before this Court is as to 'whether the period provided under Order 8 Rule 1 CPC, whether of 30 days or 90 days which is couched in a language sounds to be mandatory, is in reality mandatory or directory?' Now this question is no more res integra as it has been decided through various authorities of this Court as well as of the Apex Court in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India 2005 ACJ 492 that the provisions of Order 8 Rule 1 CPC are directory in nature. Similarly in the case of Sambhaji and Ors. (supra), the Supreme Court has held that the provision does not deal with 'the power of the Court and also does not specifically take away power of Court to take written statement on record though filed beyond the period as provided for. Further the nature of the provision contained in Order 8 Rule 1 CPC is procedural. It is not a part of the substantive law. Substituted Order 8 Rule 1 CPC intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases, causing inconvenience to the plaintiffs and the petitioners approaching the Court for quick relief and also 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. All the rules of procedure are the handmaids of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless, compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.'
9. Similar views have been expressed in the other authorities which have been cited at the instance of the counsel for the petitioners. In one of the cases, which is particularly pointed out by the counsel for the petitioners in M/s Panjon Ltd. (supra), written statement was filed and was taken on record. There was an application filed on behalf of the plaintiff for striking of the defence, which was allowed. In that case, this Court allowed the revision petition and set aside the order and the written statement which was already filed by the defendant, was held to be validly filed within time.
10. Now adverting to the judgment cited by the counsel for the respondent in Mohammed Yusuf (supra), it is worthwhile to refer to its facts first:
In that case, suit was filed in the year 2002. The defendants were served on 6.7.2002 and they appeared through their learned advocate on 19.7.2002. An application was filed by the plaintiff for grant of temporary injunction which was rejected on 28.1.2004 against which he filed an appeal which was disposed of on 14.5.2004. On or about 31.1.2005, the plaintiff filed an application before the trial Court for pronouncing judgment in terms of Order 8 Rule 10 CPC inter alia, on the premise that the respondents did not file any written statement. On the same date the defendants filed an application for filing written statement without filing an application for condonation of delay in filing the same. In this background, the Supreme Court has held that the Court should not have allowed the defendants to file his written statement as there was contumacious delay of about three years in filing of the written statement, however, it was held that terminology of Order 8 Rule 1 shows that it is mandatory provision but the provision is directory in nature but filing of written statement beyond 90 days should be allowed in extreme hardship and only in rare and exceptional cases.
11. In any case, the sum and substance of all the judgments which have been referred to by the counsel for the petitioners or by the counsel for the respondent is that provisions of Order 8 Rule 1 CPC are not mandatory and are directory only. If it is directory, then the question is whether this Court should entertain the question of striking off the defence. In my view, the discretion has to be exercised judiciously and for that purpose, it has to be seen before passing an order whether it could cause hardship to the defendant, who had to participate in litigation to protect his interest against an unscrupulous plaintiff who could have filed a frivolous litigation. Therefore, in the present case after a passage of 3 dates when written statement was filed and the Court had taken on record the same, there was no reason for the Court to have allowed the application filed by the plaintiff for striking off the defence leaving defendants helpless to face a decree in terms of Order 8 Rule 10 CPC. Thus, I hold that provisions of Order 8 Rule 1 CPC are directory in nature and the impugned order has been passed by the court without application of mind and keeping in view the law laid down by the Apex Court as referred to above and as such, this revision petition is allowed and the impugned order is set aside.
12. At this stage, learned Counsel for the appellant has requested the Court to direct the trial Court to expedite the trial to which counsel for the petitioner raised no objection. In view thereof, trial court is directed to expedite the trial of the suit and decide the same preferably within a period of one year from the date of receipt of certified copy of this order.