" The suit is filed on 01.09.2017.....
....The Counsels for Plaintiff and defendants 1 to 5
appeared on 07.10.2017. Till 07.11.2017, both the
advocate for defendant 1 to 5 and defendant 7 did not file
the written statement. Later, On 16.01.2018 defendant no-
1 to 5 filed application under Order 8 Rule 1 of CPC to
permit him to file the written statement. The counsel for
defendant no.7 also filed application under the same
provision on 14.08.2019 i.e., After the case was posted for
hearing on I.A. No.1. It is important to note here that in
the affidavit annexed to the application filed by the
advocate for defendant no.1 to 5, the affidavit is sworn by
one Prakash Kakkal who is the defendant no.3. In the
affidavit, in para no.1, he has stated that he is deposing
the affidavit on behalf of defendant no.1 and 2. However,
as far as defendant no.4 and 5, he has not sworn affidavit.
However, in the written statement filed by them it is very
clear that only defendants 1 to 3 have signed and
defendant no. 4 & 5 have not put their signatures in the
written statement filed by them on 16.01.2018. It is
important to note here that even the counsel for the
plaintiff has contended that defendants no 4 & 5 have not
put their signatures in the written statement and also in
the affidavit sworn by the defendant no.3, he has not
stated that he is swearing the affidavit. Therefore, how far
it is correct to accept the written statement of all the
defendant no. 1 to 5 without putting the signatures to the
written statement and also without any authority given by
them to the defendant no.3 is the question. Further on
perusal of the affidavit sworn by the defendant no.3, he
stated that both the defendant no.1 and 2 are residing in
different parts of Bengaluru and they could not meet each
other in order to discuss the merits and demerits.......
12. Further, the contention of the defendant no. 1 to 5
that they have not received the suit summons in order to
file the written statement is also not proper because the
same contention has been taken by them on 07.10.2017
wherein this court has clearly held that though they have
not received the summons from the court they have
voluntarily appeared before the court through their counsel.
Therefore, it is presumed that the summons have been duly
served to them. When defendant Nos.1 to 5 have
voluntarily appeared before the court, the question of
sending or issuing the summons to them does not arise at
all. In the above instances, the statutory period of filing of
written statement is already lapsed and further, the Trial
Court relied on the Judgment of Hon'ble Apex Court in M/s
SCG Contracts India Pvt. Ltd. Vs K S Chamankar
Infrastructure Pvt. Ltd. and Ors., (Civil Appeal
No.1638/2019) held that the defendant has to file the
written statement within 120 days from the date of service
of Summons. However, the maximum time for filing of
written statement shall not exceed 120 days from the date
of service of summons. It is crystal clear that in both the
instances, both defendants No.1 to 5 and defendant No.7
did not file the written statement within 120 days from the
date of service of the summons. Therefore, the Trial Judge
was of the opinion that the court had no power to allow the
applications of defendants No.1 to 5 and defendant No.7
and the application was rejected.
13. Further, it is observed that the Trial Court failed to
appreciate the provisions of Order VIII Rule 1 of CPC
properly, i.e., the defendant shall within 30 days from the
date of service of summons on him to file written statement
as his defence. Provided that where the defendant fails to
file the written statement within the said period of 30 days,
he shall be allowed to file the same on such other days as
may be specified by the Court for the reason to be recorded
in writing, but which shall not be later than 30 days from
the date of service of the summons. In the present case,
the defendants No.1 to 5 have not received the suit
summons in order to file the written statement. Further,
there, the defendants themselves appeared voluntarily
before the Court through their counsel on 07.10.2017 in
view of the same, the question of sending or issuing or
receiving summons does not arise. However, after
adjourning the matter on 07.10.2017, the respondents No.1
to 5 filed their written statement on 16.01.2018, as such, it
appears that there is a delay of 99 days in filing the written
statement on considering the date of appearance of the
defendants No.1 to 7, i.e., on 07.10.2017 as receipt of the
summons. As per the provisions of Order VIII Rule 1 of
CPC, the defendant shall file his written statement within 30
days from the date of the service of the summons. In the
present case, the defendants have not received summons
and appeared before the Court on 07.10.2017, they have to
file written statement within a period of 30 days as
stipulated under the provisions of CPC, i.e., on 06.11.2017,
but filed the written statement on 16.01.2018. It appears
that there is a delay of 99 days in filing the written
statement.
14. In view of the above circumstances, it is relevant
to rely upon the following Judgments of Hon'ble Apex Court:
• Rani Kusum v. Kanchan Devi, (2005) 6 SCC 705 :
2005 SCC OnLine SC 1195 at page 708
• Zolba v. Keshao, (2008) 11 SCC 769 : 2008 SCC
OnLine SC 601 at page 773
• Atcom Technologies Ltd. v. Y.A. Chunawala & Co.,
(2018) 6 SCC 639 : (2018) 3 SCC (Civ) 777 : 2018
SCC OnLine SC 499 at page 646
• Sailendra Kumar Sisodia vs Rani Sisodiya & Ors
2024 SCC Online SC 4043
15. In view of the above Judgments, it appears that
Order VIII Rule 1 of CPC, 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 time as provided for and also to
curb the mischief of unscrupulous defendants adopting
dilatory tactics, delaying the disposal of cases causing
inconvenience to plaintiffs and petitioners approaching the
Court for quick relief and also to the serious inconvenience
of the Court faced with frequent prayers for adjournment.
The provisions of Order VIII Rule 1 CPC or any procedural
enactment should not be construed in any manner, which
would leave the Court helpless to meet extra-ordinary
situations in the ends of justice.
16. This provision has came up for interpretation in a
number of cases and the same was observed by the Apex
Court time and again that no doubt, the words "shall not be
later than 90 days" do not take away the power of the Court
to accept written statement beyond the time and it is also
held that the nature of the provision is procedural and it is
not a part of substantial law and further expressed that
there is no restriction in Order VIII Rule 1 of CPC that after
expiry of the 90 days, further time cannot be granted. The
Court has wide power to make such order in relation to the
suit. The provision of Order VIII Rule 1 of CPC providing for
upper limit of 90 days to file written statement is directory
not mandatory.
17. In view of the above reasons, this Court has
opined that in the present case, the respondents have not
received summons and voluntarily appeared and filed
vakalath and written statement after 90 days, i.e., on 99th
day after filing vakalath not on receiving the summons. It
appears that the defendants are not adopted any dilatory
tactics and not caused any serious inconvenience to the
Court.
18. In view of the above, the impugned order dated
17.01.2022 passed by the XXVII Additional City Civil Judge
(CCH 9) at Bengaluru in O.S.No.6032/2017 on I.A.No.2 is
set aside and further, directed the trial Court to receive the
written statement on record.
Accordingly, the writ petition is allowed.
Sd/-
(DR. K.MANMADHA RAO)
JUDGE
bnv
Ct-UR
