ORDER
J.N. Bhatt, C.J.
1. The main question which has come to the surface in this Civil Revision under Section 115 of the Code of Civil Procedure, 1908, (in short the CPC) is as to whether the rejection of an application seeking permission for filing the Written Statement beyond the period of limitation in terms of the amended provision of Order VIII Rule (1) of the CPC by the trial Court by passing an order on 2.3.2005 in Title Suit No. 312 of 2003 is legal and valid or not.
A few admitted material facts, useful for the consideration and adjudication of the sole point raised in this Revision may be highlighted at this juncture :
(1) The title Suite came to be filed by the opposite parties No. 1 in this Revision who is the original plaintiff, for declaration of title in which the trial Court passed an order to proceed with the matter ex-pane on 4.2.2004.
(2) The petitioner in this Revision, original defendant, applied for recalling the ex-parte order and the trial Court, upon consideration of facts and hearing the Advocates for the parties, was pleased to recall the ex-parte order recorded on 4.2.2004 by passing an order on 24.7.2004.
(3) The ex-parte order was set aside and the matter was directed to be proceeded with by the parties.
(4) On 21.9.2004, the Written Statement was presented before the trial Court which was objected by the other side.
(5) The trial Court upon consideration of the facts and circumstances reached to the conclusion that the presentation or filing of the Written Statement by the original defendant has not been within the period of limitation of 90 days as prescribed in the amended provision of Order VIII, Rule (1) of the CPC by virtue of order dated 2.3.2005.
2. This is, precisely, the order under challenge in this Civil Revision by invocation of the provision of Section 115 of the CPC.
3. It may be recorded that in between the presentation date of an application to get the ex-parte order set aside before the trial Court and the date on which the Written Statement came to be presented, on 21.9.2004, there were some intervening circumstances which are also not in dispute as per the record.
4. In short, the learned trial Court Judge was weighed by perception he conceived by reading the amended provision of Order VIII Rule (1) of the CPC that the. outer limit of 90 days was exceeded and the presentation of the Written Statement was not within the period of limitation and therefore, the trial Court only on this sole ground rejected receiving or accepting the oral request for filing Written Statement made on behalf of the original defendant who is the petitioner .in this Civil Revision.
5. The amended provision of Order VIII Rule (1) of the GPC may be highlighted at this stage which reads as herein under:
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.
6. It could very well be visualised from the aforesaid provision which came to be amended firstly by virtue of amendment of Order VIII Rule (1) by Act 46 of 1999 and, thereafter, Section 18 of the CPC came to be substituted by Act 22 of 2002 with effect from 1.7.2002.
7. As per plain reading of Order VIII Rule (1) of the CPC it is evident that:
(i) The defendant is obliged to file or present the Written Statement in his defence within the period of thirty days from the date of service of summons served on him.
(ii) However, if on being satisfied about the sufficiency of the cause between the period from thirty days to ninety days, as per the proviso the Court can permit the defendant to present the Written Statement. (iii) Of course, the period between thirty days to ninety days, as provided is qualified or circumscribed by amended provision to the effect that there should be justifiable ground for satisfaction of the Court and such a ground of such satisfaction his to be recorded in writing.
8. The submission that the presentation of the Written Statement was not within the period of ninety days as required in terms of the proviso to Order VIII Rule (1) of the CPC, in support of the conclusion recorded in the impugned order by the trial Court Judge, as stated earlier, there is a rejection of the presentation of the Written Statement filed by the defendant in course of the proceeding before the trial Court, is only one and that is the limitation. It is, explicitly, observed that the Written Statement, as was presented could not be permitted to be taken on record since the limitation of ninety days had expired. In the opinion of this Court, this view reached by the trial Court is, wholly, erroneous and requires to be quashed and set aside.
Firstly, as such in a situational reality which is obtainable in the present litigation it cannot be said that the Written Statement was presented by the defendant beyond the period of limitation of ninety days in terms of the proviso attached to Order VIII, Rule (1) of the CPC for the simple reason that the trial Court by passing an ex-parte order recorded on 4.2.2004, and recalling the same by passing an order dated 24.7.2004 permitting the defendant to participate in the litigation and, thereafter, presentation of the Written Statement on 21.9.2004, could not be said to be beyond the period of limitation.
9. It may be remembered that the limitation would begin to run from the date when the process is served or from the date, when in a case like the one on hand the ex-parte order has been revoked and the Court has further passed an order of bipartite proceeding recalling the earlier order of ex-pane. It cannot be permitted to argue that the period of limitation would begin to run from the date when an application for recalling the ex-parte order was made because at this stage neither the defendant nor the parties would know what will be the judicial outcome upon such a request for recalling that ex-parte order. It is, therefore, manifestly, clear that the limitation would be reckoned for the purpose of limitation of ninety days from the date when the recalling order has been recorded by the trial Court. As observed herein before the ex-parte order came to be recorded on 4.2.2004 which came to be recalled upon a request of the original defendant and the trial Court quashed it, recalled it and then substituted it by an order dated 24.7.2004 that bipartite proceeding shall be permitted. It is in this context that it must be seriously thought that as from that date the period of limitation would begin to run and not the date from the date of making an application for recalling the ex- pane order. The learned trial Court Judge, with due respect, has failed to appreciate this aspect. There is no question of any delay beyond the period of limitation of ninety days even in terms of the proviso attached to Order VIII Rule (1) of the CPC.
10. Apart from that, otherwise also this Court has held recently in Civil Revision No. 1430 of 2004; Baidyanath Singh @ Baijnath Singh and Ors. v. Ram Binay Singh and Ors. by recording an order on 7.9.2005 “Oral Judgment, Dr. J.N. Bhatt, CJ’ that the provision of amended Order VIII Rule (1) of the CPC is not mandatory but directory and in a given situational reality upon satisfaction the Court may accept the Written Statement even beyond the period of ninety days in the larger interest of justice. The view which is taken by this Court earlier is, also, very much reinforced by the decision of the Hon’ble Apex Court in “Salem Advocate Bar Association, Tamil Nadu v. Union of India 2005 AIR Supreme Court Weekly 3827″. In the opinion of this Court, the question of filing or presentation of the Written Statement beyond the period of ninety days in terms of the proviso to Rule (1) of Order VIII of the CPC would not assume any significance in the present ease, as observed herein before. None-the-less, even if it is assumed in favour of the original plaintiff opposite party in this Revision, and as held by the trial Court in the impugned order that the Written Statement came to be filed beyond the spell of ninety days and, therefore, it was incumbent for the trial Court not to permit to take on record the Written Statement of the defendant is wholly, erroneous and misconceived.
11. In the result, for the foregoing grounds, this Revision Application deserves to be allowed by quashing the impugned order of the trial Court.
12. Of course a question was raised before this Court as to whether there was sufficiency of ground or not. After having taken into consideration the entire factual conspectus emerging from the record of the present Revision and the nature of the dispute, as also the time, thus far, spent in the litigation and attending circumstances, it cannot be said that sufficiency of ground can be only manifested by giving an application in writing in a case like the present one, for accepting the Written Statement. It is in this context, that without remitting the matter to the trial Court for consideration of sufficiency of the ground, as it would unnecessarily delay the disposal of the plaintiff’s suit on merits on technical matter which cannot be encouraged at this stage, more so when the unhealthy syndrome in the system of justice delivery, which says “If I were the plaintiff I would not stop; and if I were the defendant I will not allow to start and move” must die, as early as, possible so that the Court can be able to avoid the length of the litigation or duplication or multiplicity of the proceedings the trial Court should be directed to proceed with the matter. It is in this context that by taking the view from the record this Court has no hesitation in finding that the impugned order is not justified. However, before concluding let it be mentioned that in view of the pendency since long of the litigation before the trial Court and when the matter has not yet exceeded from the stage of filing of the Written Statement which is en-route to the long legal journey, the trial Court is directed to take appropriate prompt action to proceed with the matter.
13. In the result, this Revision Application shall stand allowed and the impugned order shall stand quashed. However, there is no order as to costs.