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2010 DIGILAW 1200 (PNJ)

Mahinder Pal v. Hari Saran

2010-03-16

RAJESH BINDAL

body2010
Judgment Rajesh Bindal, J. 1 In the present petition, the challenge is to the order dated 21-.1.2010 passed by the learned court below, whereby on account of non- filing of written statement by the petitioners-defendants No. 1 to 3, their defence was struck off. 2 For the view I am taking in the present petition, I do not deem it appropriate to issue notice to the respondents, as the same would unnecessarily delay not only the disposal of the present petition but the suit as well. 3 Learned counsel for the petitioners submitted that written statement could not be filed on the date fixed for the reason that the case was still at service stage. The petitioners had put in their appearance only on 12.10.2009 on which date the case was adjourned to 29.10.2009 for filing written statement. On the adjourned date, the case was again adjourned on the request of counsel for the petitioners for 24.11.2009. The defence of the petitioners was struck off on 21.1.2010 by the learned court below on technical ground that 90 days had already elapsed, after their service. He further submitted that no effective proceedings have taken place after the passing of the impugned order. He has relied upon judgments of Hon-ble the Supreme Court in Kailash v. Nanhku and others, JT 2005(4) SC 204; Salem Advocate Bar Association, Tamil Nadu v. Union of India, 2005(3) R.C.R.(Civil) 530 - JT 2005(6) SC 486 and M/s. R.N. Jadi and Brothers and others v. Subhashchandra, 2007(3) R.C.R.(Civil) 588 -2007(2) R.C.R.(Rent) 139 - 2007(4) R.A.J. 125 - JT 2007(9) SC 165, to submit that Order VIII Rule 1 of the Code of Civil Procedure has been held to be directory in nature and not mandatory. 4 After hearing learned counsel for the petitioners, I find merit in the contentions raised by him. It has been consistently opined by Hon-ble the Supreme Court in the judgments, referred to above, that Order VIII Rule 1 of the Code of Civil Procedure which provides time for filing of written statement is directory in nature. 5 Accordingly, the petition- is accepted. The petitioners are permitted to file written statement before the learned court below on or before the next date of hearing i.e. 8.4.2010. The issues, if already framed, may be modified or reframed keeping in view the stand of the petitioners/defendants in the written statement to be filed. 5 Accordingly, the petition- is accepted. The petitioners are permitted to file written statement before the learned court below on or before the next date of hearing i.e. 8.4.2010. The issues, if already framed, may be modified or reframed keeping in view the stand of the petitioners/defendants in the written statement to be filed. However, the same shall be subject to payment of Rs. 3,000/- as costs to the respondent. The costs shall be paid on the next date fixed before the learned court below.