Vasu vs Padmarajan on 14 August, 2007

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 24705 of 2007()


1. VASU, S/O. ACHUTHAN,
                      ...  Petitioner

                        Vs



1. PADMARAJAN, S/O.PADMANABHAN,
                       ...       Respondent

                For Petitioner  :SRI.PHILIP T.VARGHESE

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :14/08/2007

 O R D E R
                       M.N.KRISHNAN,J
                  ================
                     W.P.(C).24705 of 2007
                  =================
             Dated this the 14th day of August, 2007


                          JUDGMENT

This writ petition is filed challenging the order of the

Subordinate Judge, Ottappalam, in rejecting the prayer to

receive written statement. The learned Subordinate judge

rejected the same on the ground that since the written statement

is filed beyond the period (executable period of 90 days) it is

being rejected. The learned Subordinate Judge has failed to take

note of the decision of the Apex Court reported in Kailash v.

Nanhku (2005(2) KLT 623 (SC)) the Apex Court held ” the

purpose of providing the time schedule for filing the written

statement under Order VIII Rule I of CPC is to expedite and not

to scuttle the hearing. The provision spells out a disability on

the defendant. It does not impose an embargo on the power of

the Court to extend the time. Though the language of the

proviso to Rule 1 of Order VIII if the CPC is couched in negative

form, it does not specify any penal consequences flowing from

the non-compliance. The provision being in the domain of the

W.P.(C).No.24705/2007
:2:

Procedural Law, it has to be held directory and not mandatory.

The power of the court to extend time for filing the written

statement beyond the time schedule provided by Order VIII Rule

1 of the CPC is not completely taken away”.

The learned counsel for the writ petitioner submits that on

account of ailment he was not able to file the written statement

in time. Considering the contentious nature of the suit it is only

just and desirable to give an opportunity to file the written

statement and proceed with the matter on merits. Therefore, the

order under challenge is set aside and the written statement is

received and the court is directed to proceed further in

accordance with law.

M.N.KRISHNAN,JUDGE

dvs