HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU (Through Virtual Mode from Srinagar) OWP No. 247/2019 Pronounced on :26.08.2025 Vikas Sharma & ors. …. Petitioner(s) Through:- Mr. R. K. S. Thakur, Advocate V/s Pawan Kumar & ors. …..Respondent(s) Through:- Mr. Kapil Sharma, Advocate CORAM : HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE JUDGMENT 01. The petitioners, in this petition filed under Article- 227 of the Constitution of India, have assailed the order dated 31.12.2018 passed by the Court of learned Sub-Judge (Special Mobile Magistrate), Udhampur in case titled Pawan Kumar versus Shankar Das & anr. wherein the application of respondent No. 1 herein seeking extension of time for filing the written statement has been dismissed. 02. The petition arises in the backdrop of the following facts:- “The respondents (hereinafter to be referred to as ‘plaintiffs’ and the petitioners referred to as ‘defendants) preferred a civil suit for declaration to the effect that by virtue of registered Will Deed dated 7th April 2015, executed by deceased Mangoo Ram alias Mangoo son of Anant Ram alias Nant Ram, resident of Village, Thanda Paddar, Udhampur. The plaintiff Nos. 1 & 2 i.e. respondent Nos. 1 & 2 herein have inherited their landed property to the extent of 2 14 kanals and 10 Marla, each and plaintiff No. 3 to the extent of 12 Kanals and defendant Nos. 1 & 2 have inherited to the extent of 15 Kanals and 14 Marlas and 04 Kanal respectively, with the consequential relief of permanent prohibitory injunction, restraining the defendants from causing any interference or obstruction in the plaintiffs possession over the inherited land to the extent of their share, continuing to be in their possession after the death of Mangoo Ram and also for effecting partition of the total inherited landed property by meets and bounds with actual delivery of their separate possession to the extent of the individual’s share. On presentation of the suit, the summons were issued on the same date i.e., on 09.06.2016 for the service of the defendants. The defendant No. 2 was served on 16.06.2016 and Mr. Pankaj Sharma, Advocate appeared on behalf of defendant No. 2 and filed his vakalatnama on 26.07.2016. The defendant No. 1 was served on 26.07.2016, owing to the non-appearance of defendant No. 1, he was set ex-parte on 18.09.2016. The suit was fixed for different dates wherein defendant No. 2 sought opportunities to file written statement. The learned counsel appearing for defendant No. 2 sought an opportunity on 08.10.2016 to file an application seeking permission to file written statement along with written statement as well as setting aside ex-parte proceedings initiated against defendant No. 2. The plaintiffs/non- applicants filed objections to these applications.” 3 03. These applications were in fact preferred on 14.10.2016. During the pendency of these proceedings, defendant No. 1-Shankar Dass died due to prolong illness on 06.03.2018. The respondents preferred an application for bringing on record the legal heirs of Sh. Shankar Dass and the said application was allowed and the legal heirs of Sh. Shankar Dass were impleaded on 12.07.2018 and by virtue of order dated 09.08.2018, the learned Trial Court recorded that the written statement filed by defendant No. 1 is to be treated as the written statement on behalf of the legal heirs. 04. The defendant No. 2 had also filed an application seeking extension of time for filing written statement along with the written statement before the learned Trial Court, which was pending since October 2016. The Trial Court after considering the application seeking extension of time for filing written statement was pleased to dismiss the application filed by defendant No. 2, and as a consequence, the written statement filed by defendant No. 2 which was already placed in trial court’s record was rejected by the Trial Court. 05. The defendants submit that they were not aware about the remedy available against the order dated 31.12.2018 and, as such, on some wrong and mistaken advice, they have filed an appeal against the order, but since 4 the appeal was not maintainable, therefore, the same was withdrawn. 06. The learned Trial Court upon consideration of the averments and the material on record was pleased to dismiss the application for extension of time as he was of the view that in the present application, the defendant No. 2 had not made out any ground for allowing his application for extension of time to file the written statement. The grounds taken by the applicants were only vague in nature and they had not shown any sufficient cause for condoning the delay in filing the written statement beyond the stipulated period of time. 07. Heard learned counsel for the parties. 08. Learned counsel for the defendants submits that the learned Trial Court had committed an error while passing the order, rejecting the application for extension of time for filing the written statement only on the ground that the applicants had sought extension of time on the grounds that the trial court ignored the fact that the applicants had stated in the application that the interregnum when the period for filing written statement was available, there were some negotiations between the parties for an amicable settlement. In fact, the admitted case of the parties to the suit was near 5 relatives and the possibility of negotiations and settlement inter se relatives could not be an evasive. 09. Learned Trial Court also failed to appreciate the fact that admittedly Shankar Dass, original defendant No. 1 had been served only on 26.07.2016 and on 14.10.2016, the period of 90 days as is made available for filing written statement under Order-VIII Rule-1 CPC had not expired, therefore, in any case, the written statement on behalf of defendant No. 1/Shankar Dass could not be rejected. The other consideration which was ignored by the learned Trial Court was that the original defendant No. 1-Shankar Dass had died on 06.03.2018 and his legal heirs were brought on record only on 12.07.2018. The legal heirs i.e., petitioner/defendant Nos. 2 to 4 were included as party respondents, and in fact, it was recorded that the Court had permitted them to adopt the written statement filed on behalf of Shankar Dass vide order dated 09.08.2018. 10. It is the submitted that in terms of Order-XXII, the newly impleaded defendants in the capacity of being legal heirs of original defendant, have an independent right of filing written statement and this right could not have been snatched from them. The learned Trial Court had also ignored the fact that material technicalities or irregularities should not have come in their way and it is further 6 submitted that the delay is not an extraordinarily long, and in fact, the length of delay should be an irrelevant consideration for condoning the delay and a liberal approach should be adopted. 11. Learned counsel for the respondents/plaintiffs has supported the impugned order. It is submitted by the learned Trial Court had correctly exercised the discretion in favour of the plaintiffs in the instant case according to the learned counsel for the respondents. 12. Having regards to the fact that the defendants did not file their written statement within time and the explanation offered by them was only way, therefore, the learned Trial Court has passed this order and adjudicated the matter on merits. It is urged that interference in this regard to this order be made. The legal position as it regards to the filing of the written statement consequent to amendment in Rule–1 Order-VIII of the CPC, is fairly crystallized. 13. The rationale behind the enactment of Order-VIII Rule-1 of CPC was considered by the Hon’ble Supreme Court in Kailash versus Nanhku & ors. reported as (2005) 4 Supreme Court Cases 480. The Hon’ble Apex Court considered the question whether the time limit of 90 days as prescribed by proviso appended to Rule-1 of Order-VIII CPC is mandatory or directory. 7 “26. Three things are clear. Firstly, a careful reading of the language in which Order VIII, Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Secondly, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order VIII, Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried. 27. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is 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. 28 …….... 29. It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order VIII is circumscribed by the words __ "shall not be later than ninety days" but the consequences flowing from non-extension of time are not specifically provided though they may be read by necessary implication. Merely, because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form”. 14. In Smt. Rani Kusum vs. Smt. Kanchan Devi & ors. reported as (2005) 6 SCC 705, the Hon’ble Apex Court held that the procedural law is always subservient to and is in the 8 aid of justice and should be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice. Para-14 and 16 being relevant reads as under:- 14. It has been common practice for the parties to take long adjournments for filing written statements. The legislature with a view to curb this practice and to avoid unnecessary delay and adjournments, has provided for the maximum period within which the written statement is required to be filed. The mandatory or directory nature of Order VIII Rule 1 shall have to be determined by having regard to the object sought to be achieved by the amendment. It is, thus, necessary to find out the intention of the legislature. The consequences which may follow and whether the same were intended by the legislature have also to be kept in view. …………… 16. 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. 9 In the present context, the strict interpretation would defeat justice.” 15. Similarly the Hon’ble Supreme Court in Salem Haji Abdul Qayoom Sahab versus Kumar and others reported as (2006) 1 Supreme Court Cases 46 has held as under:- “8. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is 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. 9. The mortality of justice at the hands of law trouble a Judge’s conscience and points at an angry interrogation at the law reformer. 10. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence - processual, as much as substantive. (Sushil Kumar Sen v. State of Bihar) 1975 (1) SCC 774.” 16. The defendant No. 1 was served on 26.07.2016, the period of 90 days expired on 26.10.2016 and he was set ex- parte on 18.09.2016 before the expiry of 90 days. The written statement was jointly filed by them on 14.10.2016 much before the expiry of 90 days. The ex-parte proceedings were set aside on 18.09.2017, therefore, this time period has also to be excluded as the written statement already on 10 record. The legal heirs were brought on record and they, accordingly, have an independent right of fling their written statement. This coupled with the reason that the litigation is between the parties, who are relatives, and therefore, the explanation has merit. 17. The impugned order of the learned Trial Court is not in consequence with the principles and rulings. It is in the facts and circumstances mentioned above and for the reasons assigned that by the defendant in support of his contention for extension of time for filing the written statement are valid and good and the learned Trial Court has dismissed the application for seeking extension of time and wrong redemption. The written statement having already been filed in the Court is directed to be taken on record the same, however, with the subject to the cost of ₹5,000/- to be paid by the defendants to the plaintiffs through his counsel within a period of six weeks from today. 18. This petition is, accordingly, allowed. (Sindhu Sharma) Judge JAMMU 26.08.2025 Ram Murti Whether the Judgment is speaking : Yes Whether the Judgment is reportable : Yes