RAJESH SEKHRI, J.

1. Petitioners have invoked writ jurisdiction of this Court to assail Order dated 15.03.2019 passed by learned 1st Civil Subordinate Judge (Special Municipal Mobile Magistrate), Jammu (trial Court, for short) vide which defence of the petitioners came to be struck of in a Suit titled „Sh. Siddhant Daluja v. Guru Dutt and ors.‟

2. Before grounds of challenge urged in the petition are adverted to, it shall be expedient to have an overview of some uncontroverted facts of the case.

3. A civil Suit came to be filed by respondent No.1/plaintiff against petitioners/defendants. Defendants entered appearance in the trial court of their own on 30.03.2017 and were directed to file written statement. On 01.05.2017 none appeared for the defendants and they were awaited. On 05.07.2017, time for filing written statement was extended by the trial court in the presence of learned counsel for the plaintiff. On 25.08.2017, none appeared for the plaintiff and he was awaited by the trial court. On 09.10.2017, time for filing written statement was again extended by the trial court in the presence of learned counsel for the plaintiff and case was adjourned for 04.12.2017. However, written statement was filed by the defendants on 02.11.2017 i.e. before the next date of hearing fixed for 04.12.2017, which was opposed by learned counsel for the plaintiff on the ground of limitation. An application came to be filed by the plaintiff on 03.05.2018 in terms of Order VIII Rule 10 of the Code of Civil Procedure, 1908 (for short, CPC) for striking out the defence of the defendants on the premise that written statement was not filed within the statutory period envisaged under Order VIII CPC. Application was opposed by the defendants on the ground that since time for filing written statement was extended by the trial court from time to time, which was not opposed by the plaintiff, therefore, plaintiff waived his right to oppose the filing of written statement by the defendants after the extension of time granted by the trial Court. Learned trial Court vide impugned order allowed the application filed by the plaintiff on the solitary ground that defendants have failed to give sufficient reasons, which prevented them from filing written statement in time.

4. The defendants/petitioners have questioned the impugned order inter alia on the same grounds on which application filed by respondent No.1/plaintiff under Order VIII Rule 10 CPC, for striking of defence of the petitioners was opposed. According to the defendants, since time for filing written statement was extended by the trial court itself from time to time in the very presence of the plaintiff, therefore, finding of the trial court that petitioners-defendants have failed to give sufficient reasons for not filing written statement within the prescribed period is perverse and is liable to be quashed.

5. Heard arguments and perused the record.

6. Mr. R. K. S. Thakur, learned counsel appearing for the defendants has argued that Order VIII Rule 1 CPC provides that defendant shall present a written statement of his defence within 30 days from the date of service of summons on him and since, in the present case, defendants caused appearance in the trial Court of their own and no summons were ever served upon them, therefore, provisions contained in Order VIII Rule 1 CPC is not attracted in the present case. Mr. Thakur also submitted that since there is nothing on record to suggest that summons purported to be served upon the defendants was accompanied by a copy of the plaint, in terms of Order V Rule 2 CPC, therefore, it otherwise, cannot be termed as a valid service.

7. There is no dispute to the settled position of law that mere issuance of summons is not enough to make the defendant know about the case against him, unless a copy of the plaint or concise statement thereof is served upon him. However, I have failed to subscribe to the opinion of learned counsel for the petitioners-defendants that since defendants appeared in the case of their own, therefore, Order VIII Rule 1 CPC was not attracted, in the present case. Proviso appended to Rule 1 of Order V CPC provides that no summons shall be issued when defendant appear at the presentation of the plaint and admit the plaintiff‟s claim. Though said proviso is applicable in cases where defendant appears at the presentation of the plaint and admit the claim of the plaintiff, however, it is sufficient to indicate that requirement of issuance of summons is dispensed with, if defendant appears of his own at the time or after the presentation of the plaint, if service is not effected upon him. I am fortified by Bank of Bengal v. R. Currie and Co. reported as 1969 Legal Eagle (CAL) 398. Relevant excerpt whereof reads as below:

“…I think that defendants having voluntarily appeared in court, the necessity of serving a summons for appearance was dispensed with…..”

8. For the aforesaid reasons argument of learned counsel for the defendants/petitioners that since summons were never effected upon the defendants, therefore, order VIII Rule 1 CPC is not applicable to the present case, is misconceived. In case, defendants voluntarily cause appearance in the court before issuance of summons or before service of summons is validly effected upon them, there is deemed service on the defendants and period of filing of written statement would be reckoned from the date of appearance of the defendants in the Court.

9. Petitioners-defendants have assailed the impugned order of striking of their defence by the trial court on the predominant premise that since time for filing the written statement was extended by the trial court from time to time, in the very presence of the plaintiff and which was never opposed by the plaintiff, therefore, plaintiff was precluded from opposing the filing of written statement by the defendants after the statutory period of 90 days. According to Mr. Thakur, learned counsel appearing for the defendants provision regarding filing of writ statement in terms of Rule 1 of Order VIII CPC is directory in nature and once discretion was exercised by the trial court by extension of time for filing the written statement to the knowledge of the plaintiff, therefore, finding of the trial court that defendants/petitioners have not given sufficient reason which precluded them from filing written statement within the statutory period sans justification and is liable to be set aside. He had relied upon Kailash v. Nanhku; AIR 2005 SC 2441 [LQ/SC/2005/458] , Amar Rice Mills and anr. v. Union Bank of India; 2020 (5) JKJ[HC] 284, Salem Advocate Bar Association, Tamil Nadu v. Union of India (UOI); AIR 2005 SC 3353 [LQ/SC/2005/750] and R.N. Jadi & Brothers and ors. v. Subashchandra; 2007(6) SCC 420.

10. Mr. R. K. Jain, learned senior Advocate for respondent No. 1/plaintiff, ex adverso, would submit that since petitioners-defendants failed to file written statement, despite service of summons within 30 days, extendable upto 120 days, as per amended provisions of Order VIII Rule 1 CPC or even upto 90 days as per un-amended provision of Order VIII Rule 1 CPC, therefore, right of the defendants/petitioners stood automatically forfeited without any formal order from the trial court. According to learned senior Counsel, the substituted provision of Order VIII Rule 1 CPC is retrospective in nature, therefore, defendants were under legal obligation to file written statement within prescribed period and since they failed to do so, their right to file written statement after the expiry of 120 days in view of the mandatory substituted provision of Order VIII Rule 1 CPC had expired with the efflux of time. Learned Senior Counsel has denied that since time to file written statement was extended by the trial court, therefore, plaintiff waived of his right of objection to the filing of written statement after the expiry of statutory period. Learned senior Counsel appearing for the contesting respondent/plaintiff is of the view that since there was no separate application filed by the defendants giving sufficient reasons for condonation of delay in filing the written statement, therefore, there was no occasion for the trial court to extend the period for filing of the written statement. According to learned counsel for the plaintiff, it is only after an explanation is tendered by the defendants that they can be allowed to file the written statement on such other day as may be specified by the court, for reasons to be recorded in writing within the meaning of Rule 1 of Order VIII (i) CPC. He has relied upon Parshotam Gupta v. National Highway Authority of India and anr.; 2017 (5) JKJ[HC] 243, Kishore Kumar and anr. v. Joginder Pal and anr.; 2010 (1) JKJ 484 [LQ/JKHC/2009/484] , ATCOM Technologies limited v. Y. A. Chunawala and Co. and ors.; 2018 (6) SCC 639 [LQ/SC/2018/658] and Amit Chawala v. Nirmal Chawala; 2020 (3) JKJ 473.

11. Order VIII Rule 1 CPC, as amended by Act 46 of 1999, provided that defendant shall, within 30 days from the date of service of summons on him, present written statement of his defence. This provision came to be amended by the Amendment Act 22 of 2002, which enabled the court to extend the time for filing written statement, on such other day, as may be specified by the court, for reasons to be recorded in writing therefor, but which shall not be later than 90 days from the date of service of summons. It further came to be amended by Amendment Act of 2018 which now enables the Court to extend the period to file the written statement, on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs, as the court deems fit, but which shall not be later than 120 days from the date of service of summons.

12. It is pertinent to mention that amended provision of Rule 1 of Order VIII(i) CPC also provides that on the expiry 120 days from the date of service of summons, defendants shall forfeit the right to file the written statement and Court shall not allow the written statement to be taken on record. From a careful reading of the language in which the amended Order VIII Rule 1(i) CPC is couched, it is manifestly clear that it casts an obligation on the defendants to file written statement within prescribed period of 30 days from the date of service of summons on him and within the extended time frame of 120 days. The consequences flowing from the non extension of time have been specifically provided as provision is couched in a negative language, which is mandatory in character. Therefore, there is no dispute that under the amended Order VIII Rule 1(i) CPC, if a defendant fails to file written statement within the statutory period of 30 days or within the extended time of 120 days, his right to file written statement shall stand forfeited and discretion of the Court to extend the period for filing the written statement is ceased after the amendment of 2018.

13. It is pertinent to mention that in the present case, suit came to be filed by the contesting respondent/plaintiff in the trial Court on 28.01.2017 i.e. before the amendment of Order VIII Rule (i) CPC by virtue of Amendment Act of 2018. It is also evident from Section i(ii) of Amended Act of 2018 that it shall come into force from the date of its publication in the Government Gazette. Therefore, it is clear that Act of 2018 is prospective in nature and cannot be made applicable retrospectively. At the time of institution of Suit it was the unamended Order VIII Rule 1 CPC, amended by way of Amendment Act XXII of 2002 which was occupying the field and amended Act of 2018 is not attracted in the present case. In this view of the matter, period for filing written statement, in the present case, was 30 days extendable upto 90 days in terms of Amendment Act XXII of 2002. Since the consequences flowing from the non extension of time were not specifically provided in the said provision, therefore, it was held by Hon‟ble Supreme Court and various High Courts across the country that provision does not specifically take away the power of the court to take the written statement on record though filed beyond statutory time provided for. Hon‟ble Supreme Court in Kailash v. Nanhku (supra) while interpreting the provisions of un-amended Order VIII Rule 1 CPC and the consequences flowing thereof has made following observation:

“27. 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.

30. 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. A similar view has been expressed by the Hon‟ble Supreme Court in Salem Advocate Bar Association, Tamil Naidu (supra) that provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is not mandatory. Relevant excerpt reads as below:

“………………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……………”

15. Same principle has been reiterated by Co-ordinate Benches of this Court in Parshotam Gupta and Amar Rice Mills (supra).

16. The case law cited at bar by learned counsel for the contesting respondent/plaintiff is distinguishable on facts and circumstances of the present case for the following reasons.

17. In Parshotam Gupta, an application for condonation of delay in filing the written statement was filed by the defendant explaining the reasons which prevented him from filing the written statement within the stipulated period of time and learned trial court condoned the delay as sufficient cause was found for not filing the written statement within the statutory period. True, it is that no such application has been made by the defendants/petitioners in the present case, however, the fact remains that learned trial court extended time for filing the written statement by the defendants in the very presence of the plaintiff/contesting respondent without any objection from him.

18. In Mehar Chand respondent No. 1 failed to file written statement within the prescribed period of 30 days. Extension of time was sought even after the expiry of the extended period of 90 days. He filed an application for extension of time to file the written statement without seeking condonation of delay. Since learned trial court extended the time to file the written statement after huge lapse of more than 03 years from the date of service of summons, in a mechanical fashion and without assigning plausible reasons therefor, the order of the trial court condoning huge delay of filing the written statement was set aside by this court. Similarly, in ATCOM Technologies Limited (supra), Hon‟ble Supreme Court set aside the order of the High Court condoning abnormal delay of 5 years and 54 days in filing the written statement without any justification. In all these cases, condonation of inordinate delay in filing written statement was called into question. On the contrary, the extension of time by the trial court in filing the written statement, in the present case, in the presence of learned counsel for the plaintiff was never called into question by the plaintiff.

19. Record bears testimony to the fact that plaintiff remained a mute spectator even after extension of time by the trial court for filing written statement till same was filed by the defendants/petitioners. Petitioners –defendants in their objection to the application preferred by the contesting respondent/plaintiff have clearly mentioned that since time for filing written statement was extended by the trial court from time to time which was not opposed by the plaintiff, therefore, plaintiff waived his right to oppose the filing of the written statement filed by the defendants. It was further submitted that provisions of Order VIII Rule 1 CPC, being directory in nature, trial court has ample power to grant time for filing the written statement. Finding of learned trial court, therefore, that defendantspetitioners have failed to give sufficient reasons which prevented them from filing the written statement in time, is perverse.

20. Hon‟ble Supreme Court in R. N. Jadi and Brothers (supra) in a similar fact situation, allowed the written statement to be taken on record, when trial court had granted time to file the same even after the expiry of the statutory period of 90 days. Relevant paragraph of the judgment reads as below:

“8. The matter can be looked at from another angle. Undisputedly, the trial Court had granted time upto 8.6.2004 which undisputedly fell beyond 90 days. There is no dispute that the written statement was filed on 8.6.2004.”

21. Mr. Jain, learned senior Advocate, appearing for respondent No.1/plaintiff has also questioned jurisdiction of this Court. According to learned senior counsel, petitioners have invoked supervisory jurisdiction of this Court under Section 104 of Constitution of erstwhile State of J&K, for the purpose of challenging an interlocutory order which is not permissible under law.

22. Supervisory jurisdiction vested in the High Court under Section 104 of the Constitution of J&K is akin to Article 227 of Constitution of India. It is trite that power of superintendence and control to interfere with the orders of Tribunals or Courts inferior to it cannot be exercised by the High Courts on the drop of a hat. As per the guidelines laid down by Hon‟ble Supreme Court in Waryam Singh v. Amarnath; AIR 1954 SC 215 [LQ/SC/1954/7] , followed in the subsequent decisions on the issue, High Courts in exercise of their jurisdiction of superintendence can interfere with the orders of the courts and tribunals subordinate to it, “within the bounds of their authority” and in order to ensure that law is followed by the tribunals and the courts subordinate to the High Court to exercise jurisdiction vested in them and not by declining to exercise its jurisdiction which is vested in them. In addition to it, High Court is also vested with the power to interfere in exercise of its power of superintendence over the courts and tribunals subordinate to it when the orders passed by such tribunals and courts are downright perverse. Therefore, it is settled position of law that this jurisdiction of superintendence to be exercised by the High Court over the Subordinate Courts and Tribunals is to be exercised with circumspection and “ex debito justitie”. Mere error of law or fact would not warrant interference and it may also be not justifiable where a different view is possible in the facts and circumstances of a case.

23. If present case is approached and impugned order in the present case is analyzed with the aforesaid legal background in mind, it is manifest that impugned order passed by the trial court striking of the defence of the defendants/petitioners after time for filing the written statement was extended by the trial court itself in the very presence of the plaintiff/contesting respondents herein, without any opposition therefrom, is unjustifiable, illegal and perverse and needs interference by this Court.

24. Having regard to what has been observed and discussed hereinabove, present petition is allowed and impugned order is set aside. Consequentially application filed by the plaintinff/contesting respondent for striking of defence of the defendants/petitioners is dismissed. Written statement filed by the defendants shall be taken on record and learned trial court shall proceed with the trial of the case in accordance with law.