1 2026:HHC:31508 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. : 305 of 2021 Reserved on : 08.07.2026 Decided on : 30.07 .2026 Uploaded on : 30 .07.2026 Amar Nath Sharma and another …Petitioners Versus Deepak Kalia and others …Respondents Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. Deepak Kaushal, Senior Advocate, with Mr. Nimish Gupta, Advocate. For the respondents : Mr. Anshul Jairath, Advocate, for respondents No. 1 to 4. None for respondents No. 5 and 6. Virender Singh, Judge. Petitioners have filed the present petition, under Article 227 of the Constitution of India, read with Section 151 of the Code of Civil Procedure (hereinafter referred to as ‘CPC’), against the order, dated 4th September, 2021, passed by the learned Senior Civil Judge, Theog, District 1 Whether Reporters of local papers may be allowed to see the judgment? Yes. 2 2026:HHC:31508 Shimla, H.P. (hereinafter referred to as ‘the trial Court’), in Civil Suit No. 64/2017 and Counter Claim No. 4 of 2017. 2. By way of order, dated 4th September, 2021, the learned trial Court has dismissed the application, filed under Order VIII Rule 1 of the CPC, by the petitioners. 3. For the sake of convenience, the parties to the lis are, hereinafter, referred to, in the same manner, in which, they were referred to, by the learned trial Court. 4. The plaintiffs have filed the suit for recovery of damages to the tune of 7,13,680/-, alongwith 9% ₹ interest, from the date of filing of the suit, till the date of decree, or, realization of the entire amount and for permanent perpetual prohibitory and mandatory injunction, directing the defendants to restore the land comprised in khata/khatauni No. 4/8, bearing khasra No. 104/85, area measuring 01-15-81, situated in Mauza Bani, Tehsil Theog, District Shimla, H.P., to its original position. 5. When, put to notice, the suit has been contested by the defendants, by filing the written statement, with a prayer to dismiss the suit. 3 2026:HHC:31508 6. The defendants have also filed Counter Claim, under Order VIII Rule 6A of the CPC, with a prayer to grant the relief of permanent prohibitory and mandatory injunction and for the recovery of 4,00,000/-, on account ₹ of the damages suffered by the counter claimants/ defendants. 7. The plaintiffs have filed the written statement to the said Counter Claim, denying the averments, as made in the Counter Claim. 8. Thereafter, defendant/counter-claimant, Amar Nath Sharma, has filed the application, under Order VIII Rule 1, read with Section 151 of the CPC, for closure of the right of the non-counter claimants (plaintiffs) to file the written statement to the Counter Claim. 9. The said prayer has been made, on the ground, that the non-counter claimants (plaintiffs) have failed to file the written statement to the Counter Claim, for a period of more than one year and the said act of non-filing of the written statement to the Counter Claim is stated to be violative of the mandate of Order VIII Rule 1 of the CPC, 4 2026:HHC:31508 resulting to accrual of the right, in favour of the counter claimant/defendant. 10. This application has been contested by the plaintiffs, by submitting that the written statement to the Counter Claim has already been filed, by the plaintiffs, on 3rd July, 2018, and, as such, the said application is not maintainable. The plaintiffs have also given the reasons for not filing the written statement to the Counter Claim, by contending that the matter was fixed for compromise before the Bench of Lok Adalat and dates were fixed by the learned trial Court, for compromise, as per the request made by the parties. 11. The learned trial Court, after considering the rival contentions of the parties, has dismissed the application, vide order, dated 4th September, 2021. 12. Feeling aggrieved from the said order, the present petition has been filed, assailing the said order, mainly on the ground, that the application, filed under Order VIII Rule 1 of the CPC, has wrongly been dismissed by the learned trial Court, in violation of the mandate of the CPC. 5 2026:HHC:31508 13. According to the petitioners-defendants, time limit has been provided, under the CPC, for filing the written statement and the learned trial Court, without recording any reason, has permitted the written statement, to be taken on record. 14. As such, a prayer has been made to allow the petition, setting aside the order, passed by the learned trial Court. 15. Perusal of the zimni orders, photocopies of which, have been annexed with the petition, demonstrates that the notices were ordered to be issued, in the Civil Suit, by the learned trial Court, on 18th January, 2017, for 17th April, 2017. On that day, the defendants put appearance and the matter was adjourned for filing the written statement, on or before 4th July, 2017. On the said date, it has been observed that the defendants have also preferred the counter claim, as such, the case was ordered to be listed on 28th October, 2017, for office report. On 28th October, 2017, office report was perused and the Counter Claim was registered. Thereafter, opportunity to file written statement to the Counter Claim was given to the 6 2026:HHC:31508 plaintiffs and the matter was adjourned for 23rd December, 2017. On the said date, the matter was adjourned to 14th March, 2018 and ultimately, on 3rd July, 2018, written statement to the Counter Claim has been filed. On 24th August, 2018, in view of the objections, so raised by the learned counsel appearing for the defendants/Counter Claimants, the learned trial Court has passed the following order: “This order shall dispose of an application filed under Order 1 Rule 10 (2) read with Section 151 of C.P.C. to add the name of Sh. Bharma Nand Sharma, Contractor as a defendant in the present suit. 2. At this stage, Ld. Counsel for defendant/counter claimant has appended no objection on the aforesaid application, if application is allowed and has got no objection, if the present application is allowed. 3. Heard. Keeping in view the averments made in the application and no objection of Ld. Counsel for defendant/counter claimant, the application is allowed and plaintiff/non- counter claim is allowed to add the name of Sh. Bhrama Nand Sharma, Contractor as a defendant in the array of parties. Application stand disposed of accordingly. Be tagged with main case file after due registration. 4. At this stage, Sh. Satya Vrat Sharma, Advocate for defendant/counter claimant has raised objection that plaintiff/non-counter claimant has not filed the written statement within stipulated period of limitation to file the 7 2026:HHC:31508 written statement and the same may not allowed to be taken on record. In view of this, both the parties sought time for consideration. Allowed. Let the matter be listed for consideration and for filing amended memo/title of parties on 06.10.2018. Let notice be also issued to the newly impleaded defendant for the date fixed. Put up accordingly on 06.0.2018.” 16. Subsequently, the application, under Order VIII Rule 1 read with Section 151 CPC, has been filed, by the defendants/counter-claimants, which has been decided by the learned trial Court, vide order, dated 4th September, 2021, impugned herein. 17. The learned senior counsel appearing for the petitioners has pointed out that the learned trial Court has wrongly taken on record the written statement filed by the plaintiffs to the Counter Claim, preferred by the defendants, as, no application for extension of time to file the written statement, has been moved by the plaintiffs. 18. Reliance, in this regard, has been placed by the learned Senior counsel appearing for the petitioners- defendants-counter claimants on the decision of the Hon’ble Supreme Court in Kailash versus Nanhku and others, reported in (2005) 4 Supreme Court Cases 480. 8 2026:HHC:31508 19. By way of the Counter Claim, the counter claimants/defendants have sought the following relief: “a) A decree for permanent prohibitory and mandatory injunction be granted directing the non-counter claimants/plaintiffs to allow access to the labour/machinery of the contractor to repair the damaged portion of retaining wall and also restraining them from causing any interference in the repair work of the retaining wall of the playground of Trinity International School Fagu. b) A decree for the sum of Rs 4 lakhs as damages alongwith interest @ 12% per annum accrued w.e.f. 21 June 2016 till the date of realization be passed in favour of counter- claimant/defendants and against the non- counter claimants/plaintiffs holding them jointly and severally liable.” 20. According to the defendants/counter-claimants, written statement to the said Counter Claim has not been filed by the plaintiffs/non-counter claimants, within the stipulated time, as such, the application, under Order VIII Rule 1 of the CPC, has been filed, before the learned trial Court, with the prayer that the right of the non-counter claimants to file the written statement may be closed and the Counter Claim be decreed. 21. The provisions of Order VIII Rule 1 of the CPC, read, as under: “ORDER VIII 9 2026:HHC:31508 WRITTEN STATEMENT, SET-OFF AND COUNTER-CLAIM 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.” 22. The learned senior counsel, appearing for the defendants/counter-claimants has argued that without recording any reason for extension of time, the learned trial Court cannot permit the plaintiffs/non-counter claimants to file the written statement to the Counter Claim, as, non- recording of the reasons is violation of Order VIII Rule 1 of the CPC, as such, the written statement, so filed, by the plaintiffs/non-counter claimants may not be taken on record. 23. The Hon’ble Supreme Court, in Kailash’s case (supra) has elaborately discussed the provisions of Order VIII Rule 1 of the CPC and has held that the provisions are directory in nature and not mandatory and the maximum 10 2026:HHC:31508 time granted by Order VIII Rule 1 of the CPC can be extended. Relevant para-46 of the judgment, is reproduced, as under: “46. We sum up and briefly state our conclusions as under: (i) The trial of an election petition commences from the date of the receipt of the election petition by the Court and continues till the date of its decision. The filing of pleadings is one stage in the trial of an election petition. The power vesting in the High Court to adjourn the trial from time to time (as far as practicable and without sacrificing the expediency and interests of justice) includes power to adjourn the hearing in an election petition affording opportunity to the defendant to file written statement. The availability of such power in the High Court is spelled out by the provisions of the Representation of the People Act, 1951 itself and Rules made for purposes of that Act and a resort to the provisions of the CPC is not called for. (ii) On the language of Section 87(1) of the Act, it is clear that the applicability of the procedure provided for the trial of suits to the trial of election petitions is not attracted with all its rigidity and technicality. The rules of procedure contained in the CPC apply to the trial of election petitions under the Act with flexibility and only as guidelines. (iii) In case of conflict between the provisions of the Representation of the People Act, 1951 and the Rules framed thereunder or the Rules framed by the High Court in exercise of the power conferred by Article 225 of the Constitution on the one hand, and the Rules of Procedure contained in the CPC on the other hand, the former shall prevail over the latter. 11 2026:HHC:31508 (iv) The purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1 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 of 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 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. (v) Though Order VIII, Rule 1 of the CPC is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case.” 12 2026:HHC:31508 24. Similar view has been taken by the Hon’ble Supreme Court in Bharat Kalra versus Raj Kishan Chabra, reported in 2022 LiveLaw (SC) 465. 25. If the provisions of Order VIII Rule 1 of the CPC are seen, in the light of the decision of the Hon’ble Supreme Court in Salem Advocate Bar Association, T.N. versus Union of India, reported in (2005) 6 Supreme Court Cases 344, then, the said Rule is required to be interpreted in the manner to advance the cause of justice and not to defeat it. Relevant para-20 of the judgment is reproduced, as under: “20. The use of the word 'shall' in Order 8 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 5 procedure are handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.” 13 2026:HHC:31508 26. The decision of the Hon’ble Supreme Court in Salem Advocate Bar Association’s case (supra) has again been reiterated by the Hon’ble Supreme Court in Atcom Technologies Limited versus Y.A. Chunawala and Company and others, reported in (2018) 6 Supreme Court Cases 639, wherein it has been held that the words ‘shall not be later than ninety days’ in the proviso to Order VIII Rule 1 of the CPC do not take away the power of the Court to accept the written statement beyond that time. Relevant para-20, of the said judgment, is reproduced, as under: “20. This provision has come up for interpretation before this Court in number of cases. No doubt, the words ‘shall not be later than ninety days’ do not take away the power of the Court to accept written statement beyond that time and it is also held that the nature of the provision is procedural and it is not a part of substantive law. At the same time, this Court has also mandated that time can be extended only in exceptionally hard cases. We would like to reproduce the following discussion from the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, (2005) 6 SCC 344: (SCC p. 364, para 21) “21. ...There is no restriction in Order 8 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 8 Rule 1 providing for the upper limit of 90 14 2026:HHC:31508 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written Civil Appeal Nos. 4266-4267 of 2018 Page 13 of 15 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 8 Rule 1.” 27. The provisions of Order VIII Rule 1 of the CPC have been held to be directory, by a three-Judge Bench of the Hon’ble Supreme Court, in Civil Appeal No. 433 of 2020, arising out of Special Leave Petition (Civil) No. 6217 of 2019, titled as Desh Raj versus Balkishan (D) Through Proposed LR Ms. Rohini. Relevant para-16 of the judgment, is reproduced, 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 sweet-will 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 time-bound 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 15 2026:HHC:31508 of parties despite proactive diligence, may be just and equitable instances for condonation of delay.” (self emphasis supplied) 28. The learned trial Court, in the present case, has recorded the reasons, for rejecting the application, which are based upon the stand, as taken by the plaintiffs/non- counter claimants, in the reply to the application. 29. Moreover, the defendants/counter claimants are before this Court, by way of the petition, filed under Article 227 of the Constitution of India, where, the scope of interference is limited, as has been held by the Hon’ble Supreme Court in K. Valarmathi & Ors. versus Kumaresan, 2025 INSC 606. Relevant para-9, of the said judgment, is reproduced, as under: “Essence of the power under Article 227 being supervisory, it cannot be invoked to usurp the original jurisdiction of the court which it seeks to supervise. Nor can it be invoked to supplant a statutory legal remedy under the Civil Procedure Code, 1908. For example, existence of appellate remedy under Section 96 of the Code operates as a near total bar to exercise of supervisory jurisdiction under Article 227.” 30. In a recent decision in Nandi Infrastructure Corridor Enterprises Ltd. & Anr. versus B. Gurappa Naidu & Ors., 2026 INSC 434, the scope of interference, 16 2026:HHC:31508 under Article 227 of the Constitution of India, has again been explained by the Hon’ble Supreme Court. Relevant para-35 of the said judgment, is reproduced, as under: “35. In short, the principles laid down in the above matters is as follows: a) The power of superintendence under Article 227 is not to be exercised unless there has been an (a) unwarranted assumption of jurisdiction, not vested in Court or tribunal, or (b) gross abuse of jurisdiction or (c) an unjustifiable refusal to exercise jurisdiction vested in Courts or tribunals. b) It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. c) The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal.” (Self emphasis supplied) 31. Adjudging the facts and circumstances of the present case, in the light of the aforesaid decisions of the Hon’ble Supreme Court, it can be safely said that the learned trial Court has rightly exercised the jurisdiction 17 2026:HHC:31508 vested in it, by dismissing the application, under Order VIII Rule 1 of the CPC. 32. Even otherwise, the consequences of non-filing of the written statement, has been provided, under Order VIII Rule 10 of the CPC, which reads, as under: “10. 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 such judgment a decree shall be drawn up.” 33. The said provisions have elaborately been discussed by the Hon’ble Supreme Court in Asma Lateef and another versus Shabbir Ahmad and others, reported in (2024) 4 Supreme Court Case 696, wherein, it has been held that the provisions of Order VIII Rule 10 of the CPC are not mandatory. Relevant paras-28, 29 and 34 of the judgment, are reproduced, as under: “28. What emerges from a reading of Balraj Taneja s. Sunil Madan, (1999) 8 SCC 396, with which we wholeheartedly concur, is that only on being satisfied that there is no fact which need to be proved on account of deemed admission, could the court pass a judgment against the defendant who has not filed the written statement; but if the plaint itself suggests involvement of disputed questions of 18 2026:HHC:31508 fact, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts. Balraj Taneja s. Sunil Madan, (1999) 8 SCC 396, also lays down the law that provision of Rule 10 of Order VIII, CPC is by no means mandatory in the sense that a court has no alternative but to pass a judgment in favour of the plaintiff, if the defendant fails or neglects to file his written statement. 29. If indeed, in a given case, the defendant defaults in filing written statement and the first alternative were the only course to be adopted, it would tantamount to a plaintiff being altogether relieved of its obligation to prove his case to the satisfaction of the court. Generally, in order to be entitled to a judgment in his favour, what is required of a plaintiff is to prove his pleaded case by adducing evidence. Rule 10, in fact, has to be read together with Rule 5 of Order VIII and the position seems to be clear that a trial court, at its discretion, may require any fact, treated as admitted, to be so proved otherwise than by such admission. Similar is the position with section 58 of the Indian Evidence Act, 1872. It must be remembered that a plaint in a suit is not akin to a writ petition where not only the facts are to be pleaded but also the evidence in support of the pleaded facts is to be annexed, whereafter, upon exchange of affidavits, such petition can be decided on affidavit evidence. Since facts are required to be pleaded in a plaint and not the evidence, which can be adduced in course of examination of witnesses, mere failure or neglect of a defendant to file a written statement controverting the pleaded facts in the plaint, in all cases, may not entitle him to a judgment in his favour unless by adducing evidence he proves his case/claim. xxx xxx xxx 23. We find close resemblance of the facts and circumstances under consideration in Swaran 19 2026:HHC:31508 Lata Ghosh v. H.K. Banerjee, (1969) 1 SCC 709. A money suit instituted by the respondent before this Court was tried by the High Court at Calcutta and after taking evidence the learned Single Judge on 17th August, 1962, passed the following order: “There will be a decree for Rs 15,000 with interest on judgment on Rs 15,000 at 6% per annum and costs. No interim interest allowed.” Pursuant to that order a decree was drawn up. An appeal carried from the decree before the Division Bench failed. The Division Bench assigned sketchy reasons for the conclusion that the Trial Court “rightly decreed the suit” and disposed of the appeal with certain modification of the decree. While allowing the appeal and setting aside the decree passed by the high court and remanding the suit to the Court of first instance for trial according to law, this Court noted that Rules 1 to 8 of Order XX, CPC are, by the express provision contained in Rule 3(5) of Order XLIX, CPC inapplicable to a Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction and hence, a judge of a Chartered High Court was not obliged to record reasons in a judgment strictly according to the provisions contained in Rules 4(2) and 5 of Order XX, CPC. Notwithstanding such a provision, this Court proceeded to record in paragraph 6 as follows: (Swaran Lata Ghosh case, SC pp. 711-12) “6. Trial of a civil dispute in court is intended to achieve, according to law and the procedure of the court, a judicial determination between the contesting parties of the matter in controversy. Opportunity to the parties interested in the dispute to present their respective cases on questions of law as well as fact, ascertainment of facts by means of evidence tendered by the parties, and 20 2026:HHC:31508 adjudication by a reasoned judgment of the dispute upon a finding on the facts in controversy and application of the law to the facts found, are essential attributes of a judicial trial. In a judicial trial, the Judge not only must reach a conclusion which he regards as just, but, unless otherwise permitted, by the practice of the court or by law, he must record the ultimate mental process leading from the dispute to its solution. A judicial determination of a disputed claim where substantial questions of law or fact arise is satisfactorily reached, only if it be supported by the most cogent reasons that suggest themselves to the Judge a mere order deciding the matter in dispute not supported by reasons is no judgment at all. Recording of reasons in support of a decision of a disputed claim serves more purposes than one. It is intended to ensure that the decision is not the result of whim or fancy, but of a judicial approach to the matter in contest: it is also intended to ensure adjudication of the matter according to law and the procedure established by law. A party to the dispute is ordinarily entitled to know the grounds on which the court has decided against him, and more so, when the judgment is subject to appeal. The appellate court will then have adequate material on which it may determine whether the facts are properly ascertained, the law has been correctly applied and the resultant decision is just. It is unfortunate that the learned trial Judge has recorded no reasons in support of his conclusion, and the High Court in appeal merely recorded that they thought that the plaintiff had sufficiently proved the case in the plaint.” (self emphasis supplied) 21 2026:HHC:31508 34. In view of the above, there is no occasion for this Court to interfere with the well reasoned order, passed by the learned trial Court, in the limited jurisdiction, under Article 227 of the Constitution, which cannot be equated with the powers of the Appellate Court, or, the trial Court, unless, it is held that the trial Court has wrongly exercised the jurisdiction or exceeded its jurisdiction, while deciding the application, under Order VIII Rule 1 of the CPC. 35. Having glance of the above discussion, the petition is liable to be dismissed and is accordingly, dismissed. 36. No order as to costs. 37. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present petition. 38. Pending applications, if any, shall also stand disposed of accordingly. ( Virender Singh ) Judge July 30, 2026 ( rajni )