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This Product is Licensed to M. NAGA SHYAM KIRAN (M.N.S.K.), Advocate,

Anantapuramu
G. Parimala VS Bimala Bhatia

2005 0 Supreme(AP) 428

2005 3 ALD 867; 2005 3 ALT 301; 2005 1 AndhWR 389; 2005 2 CivCC
461; 2005 2 LS 121; 2005 2 RCR(Civ) 763

Andhra Pradesh High Court

Judges : BILAL NAZKI, L.NARSIMHA REDDY
G.Parimala - Appellant
Versus
Bimala Bhatia - Respondent
C.R.P.No.10/05
Decided On : 04-28-05
Advocates Appeared :
Mr.P. Shiv Kumar,Mr.D. Seshadri Naidu

CIVIL PROCEDURE CODE, Sec148, Or8, R1,8,9 & 10 - LIMITATION

ACT, Sec5 - Suit for perpetual injunction - Written Statement -
Enlargement of time - Trial Court refusing to enlarge time for filing
additional written statement - 90 days time stipulated for filing written
statement under amended Rule 1 of Or8 is not mandatory - Court is not
prohibited from granting time beyond 90 days to file written statement
invoking provisions of Sec148 CPC in interest of justice, reasons recorded
by Court - Once Court is empowered to grant time beyond 30 days for
filing written statement, necessary substratum for exercise of power under
Section 148 comes into existence

Extension of time beyond 90 days shall be an exception and for reasons

to be recorded and that such prayer can be made only through written
application - Maximum limit of 90 days indicated in proviso, R1 of Or8, at
the most constitutes a guiding factor for Courts in exercise of their
jurisdiction but not a basis to deny them power specifically conferred

u/Sec148 - Such construction would accord with complete scheme of

Or8 and Sec148

Order of refusal to extend time, set aside - Directed to take additional

written statement on file - CRP, allowed

Cases referred:

Holmes v. Bradfield Rural District Council , 1949 1 AllER 381

 Page 2 of 12

Kailash v. Nanhku and others , 2005 1 DT(SC) 461

Mathew Elenjical Vs Nagpur Roman Catholic Diocesan Corpn.(P) Ltd.
Kathyee Cotton Mills Ltd. Vs R.Padmanabha Pillai , 1958 AIR(KER) 88
Nachipeddi Ramaswamy Vs P.Buchi Reddy , 2003 4 ALT 642
Gobardhan Singh Vs Barsati , 1972 AIR(ALL) 246
TIRATH SINGH Vs Bachittar Singh , 1955 AIR(SC) 830
NASIRUDDIN Vs STATE TRANSPORT APPELLATE tribunal , 1976
AIR(SC) 331
MODULA INDIA Vs KAMAKSHYA SINGH DEO , 1989 AIR(SC) 162
BALRAJ TANEJA Vs SUNIL MADAN , 1999 AIR(SC) 3381
Union of India Vs Popular Construction COMPANY , 2001 AIR(SC) 4010

L. NARASIMHA REDDY, J.

( 1 ) THIS C. R. P. is filed by the 2nd defendant in O. S. No. 692 of 2002

on the file of the viii Additional Senior Civil Judge (Fast Track court), City
Civil Court, Hyderabad. He challenges the order dated 20-12-2004 passed by
the trial Court in LA. No. 290 of 2004, refusing to enlarge time for filing
additional written statement. The respondents 1 and 2 filed the suit for the relief
of perpetual injunction against the petitioner and the 3rd respondent, restraining
them from raising any loans on their documents deposited with the 3rd
respondent, and to restrain the latter from releasing their documents, in favour
of the petitioner. Mandatory injunction was also sought, against the 3rd
respondent for release of certain documents. They filed I. A. No. 1815 of 2003
to amend the plaint, to incorporate an alternative relief in the form of a direction
to the petitioner, to clear that loan contracted with the 3rd respondent. The I. A.
was ordered on 25-8-2003.

( 2 ) THE trial Court granted time to the petitioner herein to file additional
written statement. On the ground that the petitioner did not comply with the
same, the right to file additional written statement was forfeited through order
dated 17-9-2003. The petitioner filed I. A. No. 1160 of 2003, to set aside the
order dated 17-9-2003. Simultaneously, he filed C. R. P. No. 6510 of 2003, in
this Court, challenging the order in i. A. No. 815 of 2003. It was admitted and
interim stay of further proceedings in the suit was granted on 16-4-2004. In the
meanwhile, the trial Court allowed the I. A. No. 1160 of 2003 on 27-3-2004 and
granted time to the petitioner to file additional written statement on or before 7-
4-2004.

( 3 ) THE petitioner states that he came to know about the orders in I. A.

No. 1160 of 2003 only on 16-4-2004, when reference was made thereto, by the
respondents during the hearing of C. R. P. No. 6510 of 2003. The C. R. P. was
dismissed on 6-7-2004. In Review C. M. P. No. 12615 of 2004 filed in that C.
R. P. , initially, stay was granted on 2-8-2004 and it was ultimately rejected on
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3-9-2004.

( 4 ) PETITIONER filed I. A. No. 290 of 2004 on 31 -7-2004, for

enlargement of the time, fixed for filing the additional written statement, if
necessary, by condoning the delay involved therein. The trial Court dismissed
the same on taking the view that time fixed by thej court for compliance with
the condition, cannot be extended by invoking the powers under Section 5 of
the Limitation Act, and that the petitioner had by-passed the provisions of
Section 148 C. P. C.

( 5 ) THE C. R. P. came up for admission before one of us, (Bilal Nazki, J.)
during the course of hearing. Reliance was placed upon by the learned counsel
for the petitioner on a judgment rendered by the learned single Judge of this
Court, which is to the effect that, notwithstanding the amendment to Rule 1 of
Order VIII C. P. C. , through Act 22 of 2002, the time stipulated therein can be
extended, in exercise of powers under Section 148 or 151 C. P. C. , as the case
may be. In that view of the matter, the C. R. P. was referred to a Division
Bench.

( 6 ) SRI P. Shiv Kumar, learned counsel for the petitioner submits that the
time frame fixed for filing of written statement under rule 1 of Order VIII C. P.
C. , does not apply to the one, for filing of additional written statement. He
contends that even assuming that an additional written statement can be treated
as the original written statement itself, the trial Court ought to have extended
the time. The reason, according to him, is that the trial Court forfeited the right
of the petitioner herein to file the additional written statement within 22 days
from the date of ordering the amendment and thereby denied the benefit of time
stipulated under the provision. He further contends that the trial court took up I.
A. No. 1160 of 2003 even while C. R. P. No. 6510 of 2003 was pending before
this Court, and that the petitioner was not aware of the order passed in I. A. No.
1160 of 2003, so much so, no arguments were advanced therein. He ultimately
submits that the powers conferred under section 148 of C. P. C. are not, in any
way, whittled down by the time frame stipulated under Rule 1 of Order VIII C.
P. C.

( 7 ) SRI D. Seshadri Naidu, learned counsel for the respondents, on the

other hand, submits that the petitioner has been adopting dilatory tactics and did
not comply with the condition stipulated by the trial court, from time to time, in
relation to filing of the written statement. He contends that the petitioner cannot
plead ignorance of the order in I. A. No. 1160 of 2003, filed by himself. He
submits that the time frame fixed for filing of written statements under Rule 1
of Order VIII applies to the filing of additional written statements also.
According to him, section 148 cannot be invoked for extending the time,
stipulated under the C. P. C. , and it applies only to situations, where the time
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was fixed by the Courts.

( 8 ) WHILE the proceedings in a civil Court commence with the

presentation of a plaint, the nature of controversy to be resolved by the Court, in
such proceedings, becomes manifest, with the filing of a written statement by
the defendant. Depending on the admissions, denials or presentation of a new
case, by the defendant, in response to a plaint, the Court frames issues and
proceeds to try the same. Therefore, filing of a written statement is one of the
important steps in the adjudication of civil disputes. Order VIM c. P. C. , deals
with various aspects of the subject, such as, the very requirement to file the
written statement, its contents, the consequences of failure to comply with the
requirements etc.

( 9 ) UNDER Rule 1 of Order VIII, as it stood before the recent

amendments, the defendant in a suit was required to present the written
statement "at or before the first hearing or within such time as the Court may
permit". Rule 5 (2) enabled the Court to pronounce a judgment on the basis of
facts contained in the plaint, if the defendant failed to file the written statement.
But, the Court was conferred with the discretion, to require the plaintiff to
prove the facts pleaded in the plaint even where, no written statement is filed.
Rule 9 dealt with the subsequent pleadings, such as, set-off, counter claim,
additional written statement, etc. Rule 10 thereof is another important
provision. It provides for consequences flowing from failure to present the
written statement. Since this provision was preceded by Rule 9, dealing with
subsequent pleadings, judicial opinion was divided as to whether Rule 10
applies only in relation to failure to file subsequent pleadings, under Rule 9, or
the initial pleadings under Rule 1, also. To put an end to this divergence of
opinions, Rule 10 was amended through Act 104 of 1976, making this rule
applicable, in relation to pleadings, covered by Rule 1 (written statement) as
well as, Rule 9 (subsequent pleadings ).

( 10 ) THE Law Commission and the parliament felt that a substantial part
of delay in disposal of the civil suits is on account of failure to file written
statements, before the date of first hearing. It was also felt that the Courts did
not feel the restraint, in granting time for filing the same. It was in this context,
that Order VIII was subjected to substantial changes, through the Code of civil
Procedure (Amendment) Act, 1999 (Act 46 of 1999 ). Through this Act, Rule 1
was amended as under: "amendment of Order Vlll.-ln the first Schedule, in
Order VIII,- (i) for rule 1, the following rule shall be substituted, namely:-"1
Written statement:- "the defendant shall at or before the first hearing or within
such time as the Court may permit, which shall not be beyond thirty days from
the date of service of summons on the defendant, present a written statement of
his defence. "
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( 11 ) RULES 8-A, 9 and 10, of Order VIII were omitted. It is not

necessary to refer to the other amendments to Rule (sic. Order) 8, such as
insertion of Rule 1-A etc. In view of the controversy that ensued after the
amendment of C. P. C. , in the year 1999, and certain observations made by the
Supreme court, in this regard, further amendments were carried through Act 22
of 2002. Insofar as it relates to Order VIII, Rule 1 came to be enacted as
under:"order VIIIRule 1: 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. "

( 12 ) RULES 9 and 10, of Order VIII, which were omitted through Act 46
of 1999, were restored through Act 22 of 2002. The basic changes, insofar as
they relate to Rule 1 of order VIII, are that; (a) Before 1999 amendment, the
defendant was under the obligation to file the written statement "at or before the
first hearing or within such time as the Court may permit". (b) After the
Amendment Act, through act 46 of 1999, written statement was required to be
filed at the first hearing or within such time as the court may permit, which
shall not be beyond 30 days from the date of service of summons. (c) A
different time frame came to be stipulated through Amendment Act 22 of 2002.
It is to the effect that it shall be the basic obligation of the defendant to file the
written statement within 30 days from the date of service of summons. The
court, however, is conferred with the power to extend the time beyond 30 days,
but not exceeding 90 days, from the date of service of summons, for reasons to
be recorded in writing.

( 13 ) THE controversy turns around the question, as to whether the time

frame stipulated under amended Rule 1, of Order viii is mandatory, and whether
the Court has no power to accord permission to the defendant to file written
statement after the expiry of 90 days from the date of service of summons. If
Rule 1 is read in isolation, it is possible to conclude that, under no
circumstances, the Court can allow the written statement to be filed, beyond 90
days from the date of service of summons. The provision is couched in clear
prohibitory terms by stipulating, "it shall not be later than 90 days".

( 14 ) THE Supreme Court had an occasion to deal with the similar

provision, viz. , section 34 of the Arbitration and Conciliation act, 1996. In
Union of India v. Ms. Popular construction Co. , Section 34 of that Act
stipulates a time frame for the presentation of applications. Sub-section (3)
thereof reads as under:"sec. 34 (3): An application for setting aside may not be
made after three months have elapsed from the date on which the party making
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that application had received the arbitral award or, if a request had been made
under Sec. 33, from the date on which that request had been disposed of by the
arbitral tribunal: provided that if the court is satisfied that the applicant was
prevented by sufficient cause from making the application within the said
period of three months it may entertain the application within a further period
of thirty days, but not thereafter. "was contended that Section 5 of the limitation
Act applies and the Court has jurisdiction to condone the delay in presentation
of such applications. The supreme Court repeded the contention and held as
under:"as far as the language of Section 34 of the 1996 Act is concerned, the
crucial words are but not thereafter used in the proviso to sub-section (3 ). In
our opinion, this phrase would amount to an express exclusion within the
meaning of Section 29 (2) of the limitation Act, and would therefore bar the
application of Section 5 of that Act. Parliament did not need to go further. To
hold that the Court could entertain an application to set aside the Award beyond
the extended period under the proviso, would render the phrase but not
thereafter wholly otiose. No principle of interpretation would justify such a
result. "

( 15 ) CONDONATION of delay under Section 5 of the Limitation Act or

enlargement of the time, in exercise of powers conferred under the relevant
enactments, or C. P. C. , as the case may be, stand, almost on the same footing,
except for the source of power. The exercise of power to enlarge the time for
taking various steps, on the basis of the provisions of an enactment are
comparable in many respects, to the exercise of power, under Section 5 of the
Limitation Act. The only difference is that, while the former operates as part of
the scheme of the enactment, the latter steps in, where any Act is silent about it,
and does not specifically exclude the same.

( 16 ) IF Rule 1 of Order VIII were to have been the final word on the
subject matter, the principle laid down in Union of India v. Ms. Popular
Construction Co. (1 supra), would straightaway, have applied, and under no
circumstances, the Courts would have been in a position to accord permission
to a defendant to file the written statement beyond 90 days from the date of
service of summons. However, a perusal of certain provisions of Order VIII,
Rules 5 (2) and 10, renders a different view possible. The said provisions read
as under:"o. VIII R. 5 (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. ""o. VIII R10:
Procedure when party fails to present written statement called for by Court.-
Where any party from whom a written statement is required under Rule 1 or
Rule 9 fails to present the same within the time permitted or fixed by the Court,
as the case may be, the Court shall pronounce judgment against him, or make
such order in relation to the suit as it thinks fit and on the pronouncement of
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such judgment a decree shall be drawn up. "

( 17 ) FROM a reading of the same it is evident that the power of the Court
to pronounce judgment, on account of the failure on the part of the defendant to
file a written statement, is not absolute. The courts are required to undertake
certain steps. The steps indicated in Rule 10 of order VIII assume greater
importance. Though the Rule mandates that the Court"shall pronounce
judgment against defendant, the Rule contains a further provision, enabling the
Court to "make such order in relation to the suit as it thinks fit". The latter
expression has been interpreted by the Supreme Court and several High courts,
as constituting a vital and inseparable part of the whole scheme. In modula
India v. Kamakshya Singh Deo, their Lordships of the Supreme Court
examined the purport of Rules 1, 5 (2) and 10, of Order VIII, as they stood,
before the present amendment, and observed as under:". . . . Rule 1 merely
requires that the defendant should present a written statement of his defence
within the time permitted by the Court. Under rule 5 (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 against a person under
disability but the Court may in its discretion require any such fact to be proved.
Again under Rule 10 when any party from whom a written statement is required
fails to present the same within the time permitted or fixed by the court, the
Court "shall pronounce judgment against him or make such order in relation to
the suit as it thinks fit". It will be seen that these rules are only permissive in
nature. They enable the Court in an appropriate case to pronounce a decree
straightway on the basis of the plaint and the averment contained therein.
Though the present language of Rule 10 says that the court "shall" pronounce
judgment against him, it is obvious from the language of the rule that there is
still an option with the Court either to pronounce judgment on the basis of the
plaint against the defendant or to make such other appropriate order as the court
may think fit. Therefore, there is nothing in these rules, which makes it
mandatory for the Court to pass a decree in favour of the plaintiff straightway
because a written statement has not been filed. . . . "

( 18 ) THE importance of the expression "make such order in relation to the

suit as it thinks fit occurring in Rule 10 of Order VIII, was emphasized by the
Supreme Court in balraj Taneja v. Sunil Madan.

( 19 ) IT was also be beneficial to refer to the judgment of the Madya

Pradesh High Court in Mathew Elengical v. Nagpur Roman catholic Diocesan
Corpn. Ltd. . It was held that the discretion of the Court to "make such order in
relation to the suit" remains intact, having regard to the use of disjunctive in the
rule, before the said expression. From a reading of the entire rule, there is
nothing to indicate that the Court is prohibited from stipulating time, beyond 90
days, in exercise of power to "make such order in relation to the suit", under
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Rule 10 of Order VIII C. P. C. In fact, such an exercise appears to be within the

parameters and scheme of order VIII C. P. C.

( 20 ) IT is true that Rule 1 has since been amended. However, it needs to

be observed that the Parliament itself felt that stipulation of time frame under
Rule 1 of Order VIII can become meaningful, only with the omission of Rule
10, as is evident from the amendments carried through the Act 46 of 1999.
Once it has chosen to retain Rule 10 through subsequent amendment, in the
year 2002, the consequences cannot be ignored.

( 21 ) EVEN assuming that it is difficult to reconcile the purport of Rule 1,

on the one hand, and Rule 10, on the other hand, of order VIII, the Court has
required to lean in favour of the consequences, provided for under Rule 10. The
reason is that, while interpreting the provisions of an enactment, the Courts
have to adopt the one, which would avoid hardship, inconvenience, injustice,
absurdity and anomaly. Conversely, the Court has to adopt an interpretation,
which is just, reasonable, and sensible. Reference in this context may be made
to the judgments of the Queens Bench in Holmes v. Bradfield Rural District
Council and the judgment of the Supreme Court in nasiruddin v. State
Transport Appellate tribunal. Venkatarama Aiyar, J. , speaking for the Bench,
held in Tirath Singh v. Bachittar Singh as under:"where the language of a
statute, in its ordinary meaning and grammatical construction, leads to a
manifest contradiction of the apparent purpose of the enactment, or to some
inconvenience or absurdity, hardship or injustice, presumably not intended, a
construction may be put upon it which modifies the meaning of the words, and
even the structure of the sentence. "

( 22 ) THE second question is, as to the availability of power under Section

148, to a court, in relation to enlargement of time for filing written statement,
particularly in the context of the amendment to Rule 1 of order VIII. It is argued
on behalf of the respondents that Section 148 does not get attracted in such
cases, in view of the fact that the time for filing of the written statement is
stipulated under the C. P. C. , whereas section 148 applies only to the cases
where the time was stipulated "by the Court". Section 148 reads as under:"sec.
148: Enlargement of time.- where any period is fixed or granted by the Court
for the doing of 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 in
total, even though the period originally fixed or granted may have expired. "

( 23 ) IN this regard, a distinction needs to be kept in mind. The Court can

enlarge only a period fixed, or granted by it, for doing any act, prescribed or
allowed by the Court (sic. Code ). It presupposes a prior act of fixing a
particular period for doing acts, prescribed or allowed, by C. P. C. Such acts
include payment of Court Fee, (Order VII Rule 18), supply of list of witnesses
 Page 9 of 12

(Order XVI rule 10); deposit of amount or furnishing security in money decree,
security of costs, or admission of appeals (Order 41 ). Filing of written
statement under Rule 1 and additional written statement under Rule 9, of order
VIII, also falls into this category. In all these instances, the Court stipulates the
time for taking the steps and is vested with the power under Section 148, to
enlarge the time.

( 24 ) THERE are instances, where the c. P. C. itself prescribes the time

limit for certain steps. The Court has absolutely no discretion in such matters to
extend the time. Section 148 has no application in such cases. For example,
under Rule 85 of order XXI, the full amount of purchase money is required to
be paid within 15 days from the date of sale of the property. Rule 92 of Order
XXI prescribes the time, within which the deposits required under Rule 89 are
to be made, namely, 60 days. Rule 7 of order 45 prescribes the time limit for
furnishing security, for costs of the respondents, wherever a certificate is
granted for leave, to appeal to the Supreme court. In these matters, the Courts
have no discretion, either to stipulate, restrict or enlarge the time. Section 148
does not get attracted in such cases, because the time is neither fixed, nor
granted by the Court, but is prescribed by the Court (sic. Code) itself.

( 25 ) IT is possible to contend that in view of the recent amendment to

Rule 1 of order VIII, time for filing written statement is stipulated by the Code
itself, and consequently Section 148 has no application. Such contention would
be partly true, up to the extent of first part of Rule 1, which stipulates that the
written statement shall be filed within 30 days from the date of service of
summons. The proviso, however, brings about a substantial different legal
regime. It enables the Court to allow the defendants to file written statements
beyond 30 days. Once the Court is empowered to grant time, beyond 30 days,
for filing written statement, the necessary substratum for exercise of power
under Section 148 comes into existence. The reason is that the time allowed for
filing written statement beyond 30 days is or becomes, the one "fixed or granted
by the Court" and not the one stipulated by C. P. C. The maximum limit of 90
days, indicated in the proviso, at the most constitutes a guiding factor for the
Courts, in exercise of their jurisdiction, but not a basis to deny them the power,
specifically conferred under Section 148. Such a construction would accord
with the complete scheme of Order VIII, and Section 148. Support for this
proposition can be taken from the judgment of the Full Bench of kerala High
Court in Kethyee Cotton Mills v. R. P. Pillal. Order VII Rule 11 C. P. C. as it
applied to the Travancore and Cochin, contained a proviso, which restricted the
time that can be granted for the purpose of payment of Court Fee etc. It is
similar in purport, to the proviso to Rule 1 of Order VIII. It reads as
under:"provided that the time granted under clauses (b) and (c) shall not exceed
thirty days in all. "
 Page 10 of 12

( 26 ) THE contention that the period granted under this provision, cannot
be enlarged beyond 30 days, in exercise of power under Sections 148 and 149,
was repelled by the Full Bench. It was held that once the time is granted, as
provided for under the relevant provision, by the Court, it is permissible to
enlarge the time under section 148 C. P. C. It was observed:". . . . To conclude,
in our opinion, the time granted by the Court, under S. 149, read with Order VII
Rule 11 (c), is a period fixed or granted by the court, within the meaning of Sec.
148 C. P. C. , and the court has got power to enlarge or extend the time
originally fixed or granted by it. . . . "their Lordships further held:". . . . In our
view Ss. 148 and 149 give an absolute power and discretion to the court to grant
time and later extend the same to such period as it may think fit. In our view,
the proviso is more in the nature of guidance or a direction as to the period to
which the court can exercise its discretion. It is not in any way, mandatory in
the sense that any act done in contravention of the same will be a void or an
illegal act. As stated earlier, the object of the proviso appears to have been only
to put a check on the exercise of undue indulgence in favour of even
undeserving parties. That it is not mandatory is to be seen from the fact that no
penalty is attached in the said proviso. "

( 27 ) IT hardly needs any emphasis that the limit, which is incorporated

under section 148, through Act 22/02, needs to be honoured.

( 28 ) IN Nachipeddi Ramaswamy v. P. Buchi Reddy, a learned Single

Judge of this Court has undertaken a comparative study of the provisions of
Rule 1 of order VIII, as it stood at the three stages, viz. , before Act 46 of 1999,
under that Act and the one under Act 22 of 2002. In the table incorporated in
the judgment, obviously, out of oversight, the same provision was indicated in
the first two stages. That, however, is of little significance. Section 148 was
held applicable. To that extent, we agree with the views of the learned single
Judge. In addition to that, an observation was made to the effect that, inherent
power under section 151, can also be exercised in such cases. We express our
inability to agree with such a broad proposition. The reason is that section 151
does not get attacted to the situations, which are governed by specific
provisions.

( 29 ) THE judgment of the present case was reserved on 21 -3-2005. It is

rather a coincidence that, when the preparation of this judgment was halfway
through, the Supreme court rendered a judgment on 6-4-2005 in kailash v.
Nanhku and others. Their lordships considered the scope of Rule 1 of order
VIM C. P. C. , in the context of recent amendments. After referring to the
circumstances that led to the amendments, as well as the relevant case law, their
lordships held as under:"para 42: Ordinarily, the time schedule prescribed by
Order VIII, Rule 1 has to be honoured. The defendant should be vigilant. No
sooner the writ of summons is served on him he should take steps for drafting
 Page 11 of 12

his defence and filing the written statement on the appointed date of hearing
without waiting for the arrival of the date appointed in the summons for his
appearance in the court. The extension of time sought for by the defendant from
the Court whether within 30 days or 90 days, as the case may be, should not be
granted just as a matter of routine and merely for asking more so, when the
period of 90 days has expired. The extension can be only by way of an
exception and for reasons assigned by the defendant and also recorded in
writing by the court to its satisfaction. It must be spelled out that a departure
from the time schedule prescribed by Order VIII, rule 1 of the Code was being
allowed to be made because the circumstances were exceptional, occasioned by
reasons beyond the control of the defendant and such extension was required in
the interest of justice, and grave injustice would be occasioned if the time was
not extended. "

( 30 ) A note of caution was added to the effect that extension of time

beyond 90 days shall be an exception and for reasons to be recorded in writing;
and that such prayer can be made only through a written application.

( 31 ) REVERTING to the facts of the case, the controversy is, only in

relation to filing of additional written statement. Amendment to the plaint was
permitted on 25-8-2003. The right to file additional written statement was
forfeited on 17-9-2003, i. e. , within 22 days from the date of permitting the
amendment. An additional written statement is treated on par with the written
statement itself. The time frame as well as the facility of extension thereof,
applicable to written statement, shall be available in respect of subsequent
pleadings also. Rule 10 of Order VIM treats both the categories on the same
footing.

( 32 ) THE application filed by the petitioner for setting aside the order,
forfeiting the written statement, was allowed on 27-3-2004. By that time, C. R.
P. No. 6510 of 2003 filed against the order, permitting the amendment to the
plaint, was pending before his court. Counsel for the petitioner submits that the
C. R. P. was filed on 8-12-2003, and it was not taken up, on account of various
factors, not attributable to the petitioner up to 16-4-2004. It has been
categorically asserted that the petitioner was not aware of the order dated 27-3-
2004, allowing I. A. No. 1160 of 2003. In view of the fact that the petitioner has
already filed c. R. P. on 8-12-2003 and was pursuing it, this Court does not find
any reason to disbelieve his assertion as to his ignorance, and development in I.
A. No. 1160 of 2003. The petitioner was not aware of the time granted by the
trial Court upto 7-4-2004, for filing the additional written statement. Further,
once the petitioner had availed the remedy of revision against an order,
permitting amendment to the plaint, it was not expected of him, to file an
additional written statement.
 Page 12 of 12

( 33 ) THIS Court granted stay of further proceedings, in the suit initially

on 16-4-2004, in the C. R. P. , and thereafter on 2-8-2004 in the Review C. M.
P. In one form or the other, the stay continued up to 3-9-2004, may be with
certain gap. The petitioner filed the I. A. No. 290 of 2004 for enlargement of the
time on 31 -7-2004, may be, by invoking a wrong provision. In gobardhan v.
Barsati, a Full Bench of the allahabad High Court held that an application under
Section 148 can be filed even after the expiry of the time, which is initially
granted, and any default clause, incorporated in the earlier order, does not
preclude the Court from exercising the power to enlarge the time, under section
148. Further, the petitioner had the benefit of stay, granted by this Court in the
review C. M. P. , even after filing this I. A. No. 290 of 2004. In view of these
facts, it cannot be said that there was any deliberate or wilful default, or
omission, on the part of the petitioner in filing the additional written statement.

( 34 ) THEREFORE, the C. R. P. is allowed. The additional, written

statement is said to have been filed. It shall be taken on record. The trial Court
shall expedite the hearing of the suit. There shall be no order as to costs.