2008 (12) TMI 802

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....9.8.2007 passed by the learned Additional District Judge, Mathura in Civil Revision No. 322/2005 affirming the order dated 24.10.2005 passed by the learned Civil Judge whereby and whereunder while rejecting the application filed by the appellant herein under Order 8 Rule 10 of the Code of Civil Procedure, a date was fixed for recording the evidence of the plaintiffs and the application filed by the respondents herein praying for condoning the delay in filing the written statement was rejected. 2. The basic fact of the matter is not in dispute. 3. Appellant herein filed a suit for a decree for permanent injunction in the year 2002. A separate application for grant of temporary injunction was also filed. Summons upon the defendants were ser....

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....eason of the impugned judgment, the High Court has allowed the said Writ Petition, directing: Considering the facts and circumstances of the case, this Court is of the opinion that the petitioner should be permitted to contest the suit on merit. In view of the aforesaid, the order of the trial court refusing to keep the written statement on record is set aside. The written statement shall be kept on the record and the defendant-petitioner shall be permitted to contest the matter on merit subject to payment of cost of Rs. 10,000/-, which shall be deposited by the defendant- petitioner in favour of the plaintiff by means of a bank draft within two weeks. The amount so deposited can be withdrawn by the plaintiff. The writ petition is allowed....

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.... 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.] 13. Although in view of the terminologies used therein the period of 90 days prescribed for filing written statement appears to be a mandatory provision, this Court in Kailash (supra) upon taking into consideration the fact that in a given case the defendants may face extreme hardship in not being able to defend the suit only because he had not filed written statement within a period of 90 days, opined that the said provision was directory in nature. However, while so holding this Court in no uncertain....

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....ecision in Kailash v. Nanhku which held that the provision was directory and not mandatory. But there could be situations where even a procedural provisional could be construed as mandatory, no doubt retaining a power in the Court, in an appropriate case, to exercise a jurisdiction to take out the rigour of that provision or to mitigate genuine hardship. It was in that contest that in Kailash v. Nanhku it was stated that the extension of time beyond 90 days was not automatic and that the court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from the time-limit fixed by the Code and the power inhering in the court in terms of Section 148 of the Code. Kailash is no authority for receiving....