# Devraj Singh v. Smt. Babli Devi

- **Citation:** (2024) 4 ILRA 819
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-12
- **Bench:** Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devraj-singh-v-smt-babli-devi-51857
- **Pages:** 12

## Headnote

(A) Civil Law - Filing written statement
beyond 90-day limit - The Code of Civil
Procedure, 1908 - Order 8 Rule 1 - Written
Statement - Directory vs. Mandatory -
Exceptional Circumstances - The Hindu
Marriage Act,1955 - Section 21-B - Special
820 INDIAN LAW REPORTS ALLAHABAD SERIES
provision relating to trial and disposal of
petitions under the Act - Provision of
Order 8 Rule 1 C.P.C. is discretionary and
the trial court in exercise of discretion
may permit the defendant to file a
written
statement
even
after
the
statutory period of 90 days, as provided
by Order 8 Rule 1 of C.P.C. - Discretion
has to be exercised reasonably for
advancement of justice - Higher court
while either setting an appeal or while
exercising
supervisory
power
under
Article 227 of the Constitution of India
should not readily interfere with the
discretion exercised by the court below
unless the discretion has been shown to
have
been
exercised
arbitrarily,
capriciously or perversely or where the
court has ignored the settled principles
of
law
governing
the
exercise
of
discretion.(Para - 14,20,25-27)

Divorce petition filed under Section 13 of Hindu
Marriage Act - defendant-respondent (Babli
Devi) failed to file a written statement - within
the stipulated 90-day period under Order 8 Rule
1 of the Code of Civil Procedure (CPC) - Trial
court allowed defendant-respondent to file
written statement with a delay - conditional
upon payment of costs.- prompting petitioner
(Devraj Singh) challenged decision - ground -
trial court erred in exercising discretion under
Order 8 Rule 1 CPC. (Paras 1-3,25)

HELD: - Petition challenging the acceptance
of a delayed written statement was dismissed.
Court upheld the lower court's decision to
accept the respondent's written statement
beyond the prescribed period in the interest of
justice. Discretion was exercised properly,
especially given the marital nature of the
dispute. Trial court was directed to conclude the
matter expeditiously under Section 21-B of the
Hindu Marriage Act. (Paras 27-30, 32

Petition dismissed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,978 of 40,176. This is a partial read: ask again with offset=39978 for what follows._

4 All. Devraj Singh Vs. Smt. Babli Devi
819
circumstances so require. There is no doubt
that High Court can even interfere with
interim orders of the courts and tribunals
under Article 227 of the Constitution if the
order is made without jurisdiction. But then
a too technical approach is to be avoided.
When the facts of the case brought before
the High Court are such that High Court
can itself correct the error, then it should
pass appropriate orders instead of merely
setting aside the impugned order of the
Tribunal
and
leaving
everything
in
vacuum."

24. Though, the application under
Section 13-B of Hindu Marriage Act has
been filed jointly by both the parties and
also that the application under Section 13B(2) of Hindu Marriage Act has been filed
by both the parties jointly. Since the
opposite party has not appeared before this
Court, it would be appropriate that a
direction be issued to the Principal Judge,
Family Court, Agra to pass appropriate
orders keeping in view the dictum of the
Supreme Court in case of Sureshta Devi v.
Om Prakash reported in (1991) 2 SCC 25
wherein the Apex Court has held that the
consent given by the parties to the filing of
a petition for a mutual divorce had to
subsist till a decree was passed on the
petition and that in the event, either of the
party withdrew the consent before passing
of the final decree, the petition under
Section 13-B of Hindu Marriage Act, 1955
would not survive and would have to be
dismissed.

25. In view of the discussion made
above, the writ petition is allowed and the
judgment and order dated 10.01.2014
passed by Principal Judge, Family Court,
Agra in H.M.A. Case No. 2978 of 2023
(Layak Singh v. Smt. Ekta Kumari), is
hereby quashed.

26. The application filed by the
petitioner as well as opposite party jointly
for waiving off the 'cooling period' under
Section 13-B (2) of Hindu Marriage Act, is
also ```

27. The Principal Judge, Family
Court, Agra is directed to consider and
decide application filed by the petitioner as
well as opposite party under Section 13-B
of Hindu Marriage Act registered as
H.M.A. Case No. 2978 of 2023 (Layak
Singh v. Smt. Ekta Kumari), in accordance
with law, expeditiously, preferably within a
period of two months from the date of
production of a certified copy of this order
after giving opportunity of hearing to the
parties concerned and without granting
unnecessary adjournments to either of the
parties provided that there is no other legal
impediment.
----------
(2024) 4 ILRA 819
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.03.2024

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Matters U/A 227 No. 5882 of 2018 (Civil)

Devraj Singh ...Petitioner
Versus
Smt. Babli Devi ...Respondent

Counsel for the Petitioner:
Sri Mithilesh Kumar Tiwari

Counsel for the Respondent:
Sri Pradyumn Kumar

(A) Civil Law - Filing written statement
beyond 90-day limit - The Code of Civil
Procedure, 1908 - Order 8 Rule 1 - Written
Statement - Directory vs. Mandatory -
Exceptional Circumstances - The Hindu
Marriage Act,1955 - Section 21-B - Special
820 INDIAN LAW REPORTS ALLAHABAD SERIES
provision relating to trial and disposal of
petitions under the Act - Provision of
Order 8 Rule 1 C.P.C. is discretionary and
the trial court in exercise of discretion
may permit the defendant to file a
written
statement
even
after
the
statutory period of 90 days, as provided
by Order 8 Rule 1 of C.P.C. - Discretion
has to be exercised reasonably for
advancement of justice - Higher court
while either setting an appeal or while
exercising
supervisory
power
under
Article 227 of the Constitution of India
should not readily interfere with the
discretion exercised by the court below
unless the discretion has been shown to
have
been
exercised
arbitrarily,
capriciously or perversely or where the
court has ignored the settled principles
of
law
governing
the
exercise
of
discretion.(Para - 14,20,25-27)

Divorce petition filed under Section 13 of Hindu
Marriage Act - defendant-respondent (Babli
Devi) failed to file a written statement - within
the stipulated 90-day period under Order 8 Rule
1 of the Code of Civil Procedure (CPC) - Trial
court allowed defendant-respondent to file
written statement with a delay - conditional
upon payment of costs.- prompting petitioner
(Devraj Singh) challenged decision - ground -
trial court erred in exercising discretion under
Order 8 Rule 1 CPC. (Paras 1-3,25)

HELD: - Petition challenging the acceptance
of a delayed written statement was dismissed.
Court upheld the lower court's decision to
accept the respondent's written statement
beyond the prescribed period in the interest of
justice. Discretion was exercised properly,
especially given the marital nature of the
dispute. Trial court was directed to conclude the
matter expeditiously under Section 21-B of the
Hindu Marriage Act. (Paras 27-30, 32

Petition dismissed. (E-7)

List of Cases cited:

1. Aditya Hotels (P) Ltd. Vs Bom. Swadesh
Stores Ltd. & ors., A.I.R. 2007 SC 1574

2. Kailash Vs Nankhu & ors. (2005) 4 SCC 480.
3. Salem Advocate Bar Association T.N. Vs
U.O.I., (2005) 6 SCC 344

4. Zolba Vs Keshao & ors., (2008) 11 SCC 769

5. Aligarh Development Authority & ors. Vs St.
of U.P. & ors., 2011 (Volume 9) ADJ Page 810

6. Desh Raj Vs Balkishan (D) Through Proposed
LR Ms. Rohini, 2020 (2) SCC 708

7. Sangram Singh Vs Election Tribunal Kotah &
anr., AIR 1955 Supreme Court 425

8. Rajinder Tiwari Vs Kedar Nath (Deceased)
Thr L.Rs. & ors. 2019 (14) SCC 286

9. Sau. Vanita Pravin Gaikwad V. Sri Pravin
Pundlik Gaikwad, A.I.R. 2010 Bom. 62: 2010 (1)
A.I.R. Bom. R 352

10. Usha Tripathi Vs Chakradhar Tripathi, A.I.R.
2009 Chhattisgarh 10

11. The Printers (Mysore) Private Ltd. Vs Pothan
Joseph, A.I.R. 1960 Supreme Court 1156

12. Wander Ltd. & anr. Vs Antox India Pvt. Ltd.,
1990 (Supp) SCC 727

13. Mohd. Mehtab Khan & ors. Vs Khushnuma
Ibrahim & ors., A.I.R. 2013 Supreme Court Page
1099

(Delivered by Hon'ble Manish Kumar
Nigam, J.)

1. Heard Sri Mithilesh Kumar Tiwari,
learned counsel for the petitioner. No one is
present on behalf of the respondent, even in
the revised call.

2. This petition has been filed for
following relief:

" Set aside the impugned order
dated 11.05.2018 passed by learned
Additional District & Sessions Judge,
FTC, Court No. 2, Bijnor in M.P. no. 340
of 2015 (Devraj Singh Vs. Babli Devi)
4 All. Devraj Singh Vs. Smt. Babli Devi
821
under
section
13
Hindu
Marriage
Marriage Act"

3. Brief facts of the case as mentioned
in the petition are that the plaintiffpetitioner filed a divorce petition being
Divorce Petition No. 340 of 2015 on
05.05.2015.
Notice
was
issued
on
05.05.2015 to the defendant-respondent
Babli Devi for filing written statement in
the aforesaid divorce petition by the
Principal Judge, Family Court, Bijnor.
After receiving the notices issued in the
aforesaid divorce petition, the defendantrespondent
appeared
and
filed
an
application Ga-10 dated 18.01.2016 under
Section 24 of the Hindu Marriage Act and
prayed for amount of Rs. 25,000/- for
expenses of the aforesaid litigation. After
filing the aforesaid application dated
18.01.2016 under Section 24 of Hindu
Marriage Act, the defendant-respondent has
not filed the written statement and started
delaying the disposal of the aforesaid
divorce petition by seeking adjournments.
On 04.01.2017, the case was directed to
proceed ex-parte against the defendantrespondent
fixing
16.03.2017.
On
16.03.2017 defendant-respondent filed an
application
paper
No.
Ga-28
dated
16.03.2017 with the prayer that she may be
given an opportunity to file written
statement. The application filed by the
defendant-respondent was allowed by the
court. Thereafter,
on
10.04.2018
the
defendant-respondent Babli Devi filed an
application (paper No. 44-Ga) in the
aforementioned
case
and
prayed
for
condonation of delay in filing the written
statement and has also made a prayer to
accept the written statement in the
aforesaid case. Along with her application
dated 10.04.2018, defendant-respondent
has also filed his written statement paper
No. 46-Ka. To the application (paper No.
44-Ga) filed by the defendant-respondent,
petitioner filed his objections and has stated
therein that under the provisions of Order 8
Rule 1 of C.P.C., written statement can be
filed within maximum period of 90 days
after receiving the notice of the case. The
application
filed
by
the
defendantrespondent dated 10.04.2018, was filed
after a lapse of two years and three months.
The
court
below
vide
order
dated
11.05.2018 allowed the application filed by
the defendant-respondent paper No. 44-Ga
on payment of cost of Rs. 1,500/- and has
also accepted the written statement filed by
the defendant-respondent paper No. 46 Ka.
Hence the present petition.

4. Contention of learned counsel for
the petitioner is that under Order 8 Rule 1
as amended by Act No. 22 of 2002 (w.e.f.
01.07.2022) written statement can be filed
within a maximum period of 90 days from
the date of service of summons on the
defendant. It has been further contended by
learned counsel for the petitioner that after
the amendment in Order 8 Rule 1 of C.P.C.,
there is no scope for granting any further
time for filing written statement. It has
been next contended by learned counsel for
the petitioner that the provisions of Order 8
Rule 1 C.P.C. are mandatory in nature and
the court below has no option but to reject
the written statement, if filed beyond the
period of 90 days.

5. Before proceeding the matter any
further, it will be useful to look into the
statutory provisions.

6. Order 8 Rule 1 provides that
defendant shall file the written statement
within 30 days from the date of service of
summons. Proviso to Rule 1 of Order 8
C.P.C provides, in case, defendant fails to
file the written statement within said period
822 INDIAN LAW REPORTS ALLAHABAD SERIES
of 30 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 90
days from the date of service of summons.

Order 8 Rule 1 of C.P.C. is
quoted as under:

"2[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.]"

7. Learned counsel for the petitioner
relied upon the judgment of Apex Court in
case of Aditya Hotels (P) Ltd. Vs.
Bombay Swadesh Stores Ltd. And
Others reported in A.I.R. 2007 SC 1574
and also relied upon the judgment in case
of Kailash Vs. Nankhu & Others (2005) 4
SCC 480.

8. In case of Salem Advocate Bar
Association Tamil Nadu Vs. Union of
India (2005) 6 SCC 344, Supreme Court
has held that the provision of Order 8 Rule
1 providing for the upper limit of 90 days
to file the written statement is discretionary.
Paragraph nos. 20 an 21 of the judgment in
Salem Advocate Bar Association (supra) is
quoted as under:

"20. The use of the word 'shall' in
Order VIII Rule 1 by itself is not conclusive
to determine whether the provision is
mandatory or directory. We have to
ascertain the object which is required to be
served by this provision and its design and
context in which it is enacted. The use of
the word 'shall' is ordinarily indicative of
mandatory nature of the provision but
having regard to the context in which it is
used or having regard to the intention of
the legislation, the same can be construed
as directory. The rule in question has to
advance the cause of justice and not to
defeat it. The rules of procedure are made
to advance the cause of justice and not to
defeat it. Construction of the rule or
procedure which promotes justice and
prevents miscarriage has to be preferred.
The rules or procedure are handmaid of
justice and not its mistress. In the present
context, the strict interpretation would
defeat justice.

21. In construing this provision,
support can also be had from Order VIII
Rule 10 which provides that 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, the Court shall
pronounce judgment against him, or make
such other order in relation to the suit as it
thinks fit. On failure to file written
statement under this provision, the Court
has been given the discretion either to
pronounce judgment against the defendant
or make such other order in relation to suit
as it thinks fit. In the context of the
provision, despite use of the word 'shall',
the court has been given the discretion to
pronounce or not to pronounce the
judgment against the defendant even if
written statement is not filed and instead
pass such order as it may think fit in
relation to the suit. In construing the
provision of Order VIII Rule 1 and Rule 10,
the doctrine of harmonious construction is
4 All. Devraj Singh Vs. Smt. Babli Devi
823
required to be applied. The effect would be
that under Rule 10 of Order VIII, the court
in its discretion would have power to allow
the defendant to file written statement even
after expiry of period of 90 days provided
in Order VIII Rule 1. There is no restriction
in Order VIII Rule 10 that after expiry of
ninety days, further time cannot be granted.
The Court has wide power to 'make such
order in relation to the suit as it thinks fit'.
Clearly, therefore, the provision of Order
VIII Rule 1 providing for upper limit of 90
days to file written statement is directory.
Having said so, we wish to make it clear
that the order extending time to file written
statement cannot be made in routine. The
time can be extended only in exceptionally
hard cases. While extending time, it has to
be borne in mind that the legislature has
fixed the upper time limit of 90 days. The
discretion of the Court to extend the time
shall not be so frequently and routinely
exercised so as to nullify the period fixed by
Order VIII Rule 1."

9. Again in case of Zolba Vs. Keshao
and others reported in (2008) 11 SCC
769,
Supreme
Court
following
the
judgment
of
Salem
Advocate
Bar
Association (supra) held in paragraph 15 as
under:-

"15. Therefore, following the
principles laid down in the decision, as
noted hereinabove, it would be open to the
court to permit the appellant to file his
written
statement
if
exceptional
circumstances have been made out. It
cannot also be forgotten that in an
adversarial
system,
no
party
should
ordinarily be denied the opportunity of
participating in the process of justice
dispensation. Therefore, unless compelled
by express and specific language of the
statute, the provisions of Order 8 Rule 1 of
CPC or any procedural enactment should
not be construed in a manner, which would
leave
the
court
helpless
to
meet
extraordinary situations in the ends of
justice."

10. This Court in case of Aligarh
Development Authority and others Vs.
State of U.P. and Others reported in 2011
(Volume 9) ADJ Page 810 has held in
paragraph no. 2 as under:

"2. The short submission of the
petitioners is that the provision of Order
VIII Rule 1 of the Code of Civil Procedure
1908 are not mandatory but directory in
nature. Proviso to Order VIII Rule 1
provides the courts power to grant
extension but not beyond 90 days. However,
the rule does not indicate as to what
consequences flow from the non extension
of time. Courts have power to grant
extension beyond period of 90 days. Filing
of
written
statement
is
matter
of
procedure.Intended
purpose
of
the
provision is to expedite the hearing in the
matter but not to scuttle the same. The very
purpose of the procedural law is to sub
serve the ends of justices and not to
override the same. If the provision is to be
construed strictly than it can lead to
miscarriage of justice. There may be
instances
where
the
defendants
for
unavoidable reasons is not able to file his
written statement. In such eventuality by
operation of law the right to file written
statement will be closed. The intend and
purpose of the rule by its mere language
cannot obliterate the dispensation of
justice. It is in this context this provision
has to be treated as directory and not
mandatory. However, this will not clothe
the Court's power to extend the time for
filing written statement for unspecified
period. If there is no good cause to extend
824 INDIAN LAW REPORTS ALLAHABAD SERIES
the time same shall be refused. Reliance
has been placed on the judgement of
Hon'ble Apex Court in Rani Kusum Vs
Kanchan Devi and others reported in 2005
SAR (Civil) 694 in which in paragraph 11 it
has been held that:-

"All the rules of procedure are the
handmaid
of
justice.
The
language
employed by the draftsman of procedural
law may be liberal or stringent, but the act
remains that the object of prescribing
procedure it to advance the cause of justice.
In an adversarial system, no party should
ordinarily be denied the opportunity of
participating in the process of justice
dispensation. Unless compelled by express
and specific language of the Statute, the
provisions of the CPC or any other
procedural enactment ought not to be
construed in a manner which would leave
the Court helpless to meet extraordinary
situations in the ends of justice."

11. Supreme Court in case of Desh
Raj Vs. Balkishan (D) Through Proposed
LR Ms. Rohini; 2020 (2) SCC 708 held in
paragraph no. 16 as under:-

"16. However,
it
would
be
gainsaid that although the unamended
Order VIII Rule 1 of CPC is directory, it
cannot be interpreted to bestow a free hand
to on any litigant or lawyer to file written
statement at their own sweetwill and/or to
prolong the lis. The legislative objective
behind prescription of timelines under the
CPC must be given due weightage so that
the disputes are resolved in a timebound
manner. Inherent discretion of Courts, like
the ability to condone delays under Order
VIII Rule 1 is a fairly defined concept and
its contours have been shaped through
judicial
decisions
over
the
ages.
Illustratively, extreme hardship or delays
occurring due to factors beyond control of
parties despite proactive diligence, may be
just
and
equitable
instances
for
condonation of delay."

12. The Supreme Court in Sangram
Singh Vs. Election Tribunal Kotah &
Anr. AIR 1955 Supreme Court 425 has
held as under:-

"A code of procedure must be
regarded as such. It is procedure,
something designed to facilitate justice
and further its ends: not a penal
enactment for punishment and penalties;
not a thing designed to trip people up.
Too technical a construction of sections
that leaves no room for reasonable
elasticity
of
interpretation
should
therefore be guarded against (provided
always that justice is done to both sides)
lest the very means designed for the
furtherance of justice be used to frustrate
it. Our laws of procedure are grounded
on a principle of natural justice which
requires
that
men
should
not
be
condemned
unheard,
that
decisions
should not be reached behind their backs,
that proceedings that affect their lives
and property should not continue in their
absence and that they should not be
precluded from participating in them. Of
course, there must be exceptions and
where they are clearly defined they must
be given effect to. But taken by and large,
and subject to that proviso, our laws of
procedure should be construed, wherever
that is reasonably possible, in the light of
that principle."

13. Again Supreme Court in case of
Rajinder
Tiwari
Vs.
Kedar
Nath
(Deceased) Thr L.Rs. & Ors. ; 2019 (14)
SCC 286 has held in paragraph 18 as
under:
4 All. Devraj Singh Vs. Smt. Babli Devi
825

"18. It is a settled law that all the
contesting parties to the suit must get fair
opportunity to contest the suit on merits in
accordance with law. A decision rendered
by
the
Courts
in
an
unsatisfactory
conducting of the trial of the suit is not
legally sustainable. It is regardless of the
fact that in whose favour the decision in the
trial may go."

14. Thus, it is well settled that the
provision of Order 8 Rule 1 C.P.C. is
discretionary and the trial court in exercise
of discretion may permit the defendant to
file written statement even after the
statutory period of 90 days, as provided by
Order 8 Rule 1 of C.P.C. The discretion has
to be exercised reasonably for advancement
of justice.

15. I have perused the order
impugned passed by Additional District
and Sessions Judge/ Fast Track Court No.
2 Bijnor. Finding has been recorded by
the court below that the defendantrespondent appeared on 18.01.2016 and
moved an application under Section 24 of
Hindu Marriage Act claiming lump-sum
amount for expenses for contesting the
suit and different dates were fixed till
04.01.2017 for hearing the application
filed by the defendant-respondent under
Section 24 of the Hindu Marriage Act. On
04.01.2017 date was fixed as 19.01.2017
and on that date the defendant was not
present and therefore, the case was
directed to proceed against the defendantrespondent ex-parte fixing 16.03.2017.
On
16.03.2017
defendant-respondent
moved an application for recalling the
order
dated
19.01.2017
which
was
decided on 23.10.2017 and 17.01.2018
was fixed for written statement and
16.02.2018 was fixed for framing of
issues.

16. Another finding has been recorded
by the court below that by order of the
Principal Judge, Family Court dated
17.01.2018 the file was transferred to the
present court i.e. Additional District and
Sessions Judge/ FTC Court No. 2 and the
matter was referred for mediation to the
Mediation Centre and after the report of the
mediation centre dated 05.04.2018, the
mater recommenced. On 10.04.2018, the
application paper no. 44 Ga was moved by
the defendant-respondent along with the
written statement.

17. It has also been held by the court
below that the application filed by the
defendant-respondent
for
maintenance
pendente lite dated 18.01.2016 has yet not
been decided and the defendant-respondent
cannot be held responsible for not disposal
of the application filed by her. Court below
has
also
recorded
finding
that
the
defendant-respondent bonafidely contested
the case and in view of the principles of
natural justice, both the parties should have
reasonable opportunity to contest the matter
and therefore, the application (paper No. 44
Ga) filed by the defendant-respondent is
allowed and written statement (paper No.
46 Ka) is taken on record on payment of
cost of Rs. 1,500/-.

18. In case of Sau. Vanita Pravin
Gaikwad V. Sri Pravin Pundlik Gaikwad
reported in A.I.R. 2010 Bombay 62::
2010 (1) A.I.R. Bombay R 352, Bombay
High Court has held, in case where
respondent has applied under Section 24 of
the Hindu Marriage Act for grant of
litigation expenses, the said respondent
cannot be compelled to file written
statement unless an order is passed on the
said application. If an order is passed in
favour of the respondent directing the
petitioner to pay litigation expenses, the
826 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent is expected to file written
statement only after the amount is paid to
the respondent. (para 13)

19. In case of Usha Tripathi Vs.
Chakradhar Tripathi reported in A.I.R.
2009 Chhattisgarh 10, the Chhattisgarh
High Court in paragraph nos. 2,3 and 6 of
the judgment has held as under:

"2. Learned Counsel appearing
for the petitioner submits that the petitioner
and the respondent are wife and husband,
respectively.
Their
marriage
was
solemnized on 22-5-1998 at Patthalgaon,
District Jashpur and within the wedlock,
one son was born on 15-3-1999. On 24-72007 the respondent/husband filed an
application u/s 13 of The Hindu Marriage
Act, 1955 (for short "The Act, 1955") for
grant of a decree of divorce against the
petitioner/wife, in the Family Court,
Ambikapur. The application was registered
as Civil Suit No. 36-A/2007. The notice was
issued to the petitioner and the case was
fixed for 18-9-2007 for conciliation. The
petitioner appeared on 18-9-2007. In the
conciliation proceeding, the petitioner had
shown her desire to live with her
husband/respondent. On 18-9-2007 the
petitioner filed an application u/s 24 of the
Act, 1955 and the case was fixed for 21-92007. Thereafter the case was fixed on
various dates. On 16-1-2008 the petitioner
filed an application for grant of time to file
written statement. On 25-1-2008 the
petitioner filed an application for grant of
permission to engage a counsel, which was
allowed and the case was fixed for 28-12008 for order on the application of the
petitioner for grant of time to file written
statement. By the impugned order dated 281-2008 the application of the petitioner for
grant of time to file written statement was
rejected
by
the
trial
Court.
Being
aggrieved, the petitioner has filed this
petition.

3. Shri Subhash Yadav, learned
Counsel appearing for the petitioner
submits that on 18-9-2007 the case was
fixed only for conciliation proceeding
between the parties and there was no order
for filing written statement. Though the
conciliation proceeding failed on 18-92007 but the case was not fixed for filing
written statement. Learned trial Court has
erred in holding that the time for filing
written
statement
has
expired.
The
petitioner could engage a counsel on 25-12008, as such learned trial Court ought to
have granted time to the petitioner to file
written statement.

6. Having regard to the facts
situation of the case and taking into
consideration that the case on hand relates
to a marital dispute, the ends of justice
would be subserved if the petitioner is
granted liberty to file written statement in
Civil Suit No. 36-A/2007, within a period of
one month from the date of receipt of a
copy of this order.

20. In view of the law laid down as
noted above, it is clear that the provision of
Order 8 Rule 1 C.P.C. is directory and not
mandatory. Ordinarily, the time schedule
prescribed by Order 8 Rule 1 has to be
honoured.
The
defendant
should
be
vigilant. No sooner the summons are served
on him, the defendant should take steps for
filing 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 the time sought 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
4 All. Devraj Singh Vs. Smt. Babli Devi
827
and merely for the asking, more so when
the period of 90 days has expired. The
extension can only be by way of exception
and for reasons assigned by the defendant
and recorded in writing by the court to its
satisfaction.

21. Contention of learned counsel for
the petitioner is that the court below have
exercised the discretion arbitrarily in
accepting the written statement filed by the
defendant-respondent after the lapse of
statutory period i.e. of 90 days.

22. So far as the contention of learned
counsel for the petitioner that the court
below
has
exercised
the
discretion
arbitrarily is misconceived. The Supreme
Court in case of The Printers (Mysore)
Private Ltd. Vs. Pothan Joseph reported
in A.I.R. 1960 Supreme Court 1156 has
held that the appellate court should be slow
to interfere with the exercise of discretion
by the trial court. Para 9 of the judgment in
case of The Printers (Mysore) Private
Ltd. (Supra) is quoted as under:-

"9. Where the discretion vested in
the court under s. 34 has been exercised by
the trial court the appellate court should be
slow to interfere with the exercise of the
said discretion. In dealing with the matter
raised before it at the appellate stage the
appellate court would normally not be
justified in interfering with the exercise of
discretion under appeal solely on the
ground that if it had considered the matter
at the trial stage it would have come to a
contrary conclusion. If the discretion has
been exercised by the trial court reasonably
and in a judicial manner the fact that the
appellate court would have taken a
different view may not justify interference
with the trial court's exercise of discretion.
As is often said, it is ordinarily not open to
the appellate court to substitute its own
exercise of discretion for that of the trial
judge; but if it appears to the appellate
court that in exercising its discretion the
trial court has acted unreasonably or
capriciously or has ignored relevant facts
and has adopted an unjudicial approach
then it would certainly be open to the
appellate court-and in many cases it may
be its duty-to interfere with the trial court's
exercise of discretion. In cases falling
under this class the exercise of discretion
by the trial court is in law wrongful and
improper and that would certainly justify
and call for interference from the appellate
court.
These
principles
are
well
established; but, as has been observed by
Viscount Simon, L. C., in Charles Osenton
& Co. v. Johnston (1) " the law as to the
reversal by a court of appeal of an order
made by a, judge below in the exercise of
his discretion is well established, and any
difficulty that arises is due only to the
application of well settled principles in an
individual case".

23. Again in case of Wander Ltd.
and Another Vs. Antox India Private
Ltd. reported in 1990 (Supp) Supreme
Court Cases 727 has reiterated the view
and it is relevant to quote paragraph no. 14
of the judgment in case Wander Ltd. And
another (supra)

"14. The appeals before the
Division Bench were against the exercise of
discretion by the Single Judge. In such
appeals, the Appellate Court will not
interfere with the exercise of discretion of
the court of first instance and substitute its
own discretion except where the discretion
has been shown to have been exercised
arbitrarily, or capriciously or perversely or
where the court had ignored the settled
principles of law regulating grant or
828 INDIAN LAW REPORTS ALLAHABAD SERIES
refusal of interlocutory injunctions. An
appeal against exercise of discretion is said
to be an appeal on principle. Appellate
Court will not reassess the material and
seek to reach a conclusion different from
the one reached by the court below if the
one reached by the court was reasonably
possible on the material. The appellate
court would normally not be justified in
interfering with the exercise of discretion
under appeal solely on the ground that if it
had considered the matter at the trial stage
it would have come to a contrary
conclusion. If the discretion has been
exercised by the Trial Court reasonably and
in a judicial manner the fact that the
appellate court would have taken a
different view may not justify interference
with
the
trial
court's
exercise
of
discretion."

24. Again in case of Mohd. Mehtab
Khan
and
others
Vs.
Khushnuma
Ibrahim and others reported in A.I.R.
2013 Supreme Court Page 1099, in
paragraph no. 15 has held as under:

"15. In a situation where the
learned Trial Court on a consideration of
the respective cases of the parties and the
documents laid before it was of the view
that the entitlement of the plaintiffs to an
order of interim mandatory injunction
was in serious doubt, the Appellate Court
could not have interfered with the
exercise of discretion by the learned Trial
Judge unless such exercise was found to
be palpably incorrect or untenable. The
reasons that weighed with the learned
Trial
Judge,
as
already
noticed,
according to us, do not indicate that the
view taken is not a possible view. The
Appellate Court, therefore, should not
have substituted its views in the matter
merely on the ground that in its opinion
the facts of the case call for a different
conclusion. Such an exercise is not the
correct
parameter
for
exercise
of
jurisdiction while hearing an appeal
against a discretionary order. While we
must not be understood to have said that
the Appellate Court was wrong in its
conclusions
what
is
sought
to
be
emphasized is that as long as the view of
the Trial Court was a possible view the
Appellate
Court
should
not
have
interfered with the same ...."

25. In the present case, the court
below has recorded a finding that an
application under Section 24 of Hindu
Marriage Act was filed by the defendantrespondent for litigation expenses remained
pending for no fault of the defendant
respondent. The matter was sent for
mediation
and
reconciliation,
which
ultimately
failed
and
immediately
thereafter,
the
petitioner
moved
an
application for condoning the delay in
filing the written statement and has filed
the written statement along with the said
application.

26. Thus in view of judgments
referred above, it is settled that the higher
court while either setting an appeal or even
this Court while exercising supervisory
power under Article 227 of the Constitution
of India should not readily interfere with
the discretion exercised by the court below
unless the discretion has been shown to
have
been
exercised
arbitrarily,
capriciously or perversely or where the
court has ignored the settled principles of
law governing the exercise of discretion.

27. In view of the discussion above, I
find that discretion exercised by the court
below cannot be said to be perverse or
against the settled principles of law and
4 All. Devraj Singh Vs. Smt. Babli Devi
829
therefore, requires no interference by this
Court.

28. So far as, judgment relied upon by
the counsel for the petitioner in case of
Aditya Hotels Private Ltd. Vs. Bombay
Swadesh Stores Ltd. And others (supra),
the Supreme Court held that where the
extension of time is granted under Order 8
Rule 1 of C.P.C.,1908 the reasons are to be
recorded in writing, howsoever, the brief
they may be, by the court.

29. In the present case, the court
below has given reasons for allowing the
application and accepting the written
statement which was filed with delay by the
defendant-respondent. In my considered
opinion, no illegality has been committed
by the court below in allowing the
application
filed
by
the
defendantrespondent and taking the written statement
filed by defendant-respondent on record.

30. From the perusal of order
impugned, it is clear that the trial court
while allowing the written statement filed
by the defendant- respondent to be taken on
record for deciding the suit on merits after
affording the full opportunity to the
defendants to contest the case and at the
same time has also directed for payment of
cost to the plaintiff, was in my view is in
tune with the observations made by the
Apex Court in case of Sangram Singh Vs.
Election Tribunal Kotah & Anr. (supra)
and did substantial justice to both the
parties. In my view, order passed by the
court below is just and no illegality is
committed by the court below in passing
the order impugned. Accordingly, the
petition fails and is dismissed.

31. However, that since the present
dispute is a marital dispute under Section
13 of the Hindu Marriage Act and is
pending before the Family Court and both
the parties has now appeared and filed their
respective pleadings before the Family
Court. In view of provision of Section 21-B
of
the
Hindu
Marriage Act,
which
contemplates to conclude the trial within
six months from the date of service of
notice of the petition on the respondent.
Section 21-B of the Hindu Marriage Act is
quoted as under:

"21-B. Special provision relating
to trial and disposal of petitions under the
Act.-(1) The trial of a petition under this
Act shall, so far as is practicable
consistently with the interest of justice in
respect of the trial, be continued from day
to day until its conclusion unless the Court
finds the adjournment of the trial beyond
the following day to be necessary for
reasons to be recorded.

(2) Every petition under this Act
shall be tried as expeditiously as possible
and endeavour shall be made to conclude
the trial within six months from the date of
service of notice of the petition on the
respondent.

(3) Every appeal under this Act
shall be tried as expeditiously as possible,
and endeavour shall be made to conclude
the hearing within three months from the
date of service of notice of appeal on the
respondent."

32. Additional District & Sessions
Judge, F.T.C. Court No. 2, Bijnor is
directed to consider and decide the
aforesaid pending proceedings before him
in accordance with law expeditiously
after giving opportunity of hearing to the
parties concerned as well as opportunity
of leading evidence in respect of their
830 INDIAN LAW REPORTS ALLAHABAD SERIES
case and without granting unnecessary
adjournments to either of the parties
provided that there is no other legal
impediment,
keeping
in
view
the
statutory mandate of Section 21-B of the
Hindu Marriage Act quoted above.
----------
(2024) 4 ILRA 830
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2024

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Matters U/A 227 No.11299 of 2023 (Civil)

Mohd. Usman & Ors. ...Petitioners
Versus
Khurshid @ Bhoora ...Respondent

Counsel for the Petitioners:
Sri Chetan Chatterjee

Counsel for the Respondent:

(A) Civil Law - Rejection of Plaint - The
Code of Civil Procedure, 1908 - Order VII
Rule 11 - The Limitation Act, 1963 - Article
59 - Court can reject a plaint under Order
VII Rule 11 if it appears from the
statements made in the plaint that the
suit is barred by any law, including the
law of limitation - Power to reject a plaint
under Order VII Rule 11 is drastic and
should
be
exercised
only
when
the
conditions enumerated in Order VII Rule
11 are strictly adhered to - It is only if the
averments in the plaint ex facie do not
disclose a cause of action or an a reading
thereof the suit appears to be barred
under any law, the plaint can be rejected -
In all other situations the claims will have
to be adjudicated in the course of
trial.(Para -13,29)

(B) The Limitation Act, 1963 - Article 59 of
the Schedule - Limitation for filing suit for
cancellation
or
setting
aside
an
instrument or decree or for rescission of a
contract is three years - it is the date of
the knowledge of the instrument which is
the material date for start of period of
limitation and not the date of instrument.
(Para - 7,17)

Plaintiff-respondent filed Original Suit - seeking
cancellation of sale deed executed in 2008 -
alleging they only became aware of the deed in
2019 through inspection of records - defendant
filed for rejection of plaint under Order VII Rule
11 on grounds of limitation - suit was filed 11
years after the deed - Both the trial and
revisional courts dismissed the application -
Defendant-petitioner
filed
writ
petition
challenging the orders. (Para - 4,18,27)

HELD: - Courts below rightly rejected the
application under Order VII Rule 11, as the
issue of limitations is a mixed question of law
and fact to be decided after considering
evidence and hearing parties. Defendantpetitioners can raise the plea of limitation in
their written statement and get an issue framed
for consideration at trial. Section 3(1) of the
Indian Limitation Act mandates the court to
consider limitation even if not raised by parties.
(Para 27, 30-32)

Petition dismissed. (E-7)

List of Cases cited:

1. Azhar Hussain Vs Rajiv Gandhi, 1986 Supp
SCC 315

2. Madanuri Sri Rama Chandra Murthy Vs Syed
Jalal, (2017) 13 SCC 174: (2017) 5 SCC (Civ)
602

3. P.C. Bhandari Vs New Victoria Mills, A.I.R.
1979 Allahabad Page 1

4.