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2011 DIGILAW 1753 (PNJ)

Nahar Singh v. Angrej Singh

2011-09-15

AJAY K.MITTAL

body2011
JUDGMENT AJAY KUMAR MITTAL, J. - 1. The petitioner-defendants are aggrieved by the order dated 6.11.2009 passed by the trial court whereby the defence of the defendant-petitioners has been struck off for not filing the written statement within the stipulated period of 90 days from the date of appearance. 2. Briefly the facts as narrated in the petition necessary for adjudication of the revision petition may be noticed. The respondents-plaintiffs filed a suit for possession of land measuring 4 Kanals 4 Marlas bearing khasra No.10/24/1/2/2 situated in village Kaler Tehsil Ajnala, District Amritsar. The defendants-petitioners have denied their claim on the basis of various registered sale deeds. On receipt of notice, the petitioners appeared in Court on 21.11.2008 and the case was adjourned to 6.1.2009 when the case was again adjourned for 13.2.2009 but due to wrong date having been noted by them as 23.2.2009, ex-parte proceedings were taken. The application for setting aside ex-parte proceedings was filed immediately which was decided on 25.8.2009 on which date the plaintiffs-respondents filed an application under Order 8 Rule 1 of the Code of Civil Procedure (In short “the Code”). The petitioners filed reply to the same on 11.9.2009 and the trial court vide order dated 6.11.2009 has struck off their defence. 3. Learned counsel for the petitioners submitted that the written statement was ready on 11.9.2009, copy of which has been annexed as Annexure P-3 to the petition but the same could not be filed till the order dated 13.2.2009 ordering ex-parte proceedings was set aside which was set aside on 25.8.2009 when instant application under Order 8 Rule 1 of the Code was filed for striking off defence, the reply to which was filed on 11.9.2009 when the written statement was ready but the trial court vide impugned order dated 6.11.2009 had directed striking off defence of the defendants-petitioners. According to the learned counsel, in the reply to the application for striking off defence, it was specifically mentioned that written statement was ready and under the circumstances it could not be said that there was intentional or deliberate delay in filing the written statement necessitating striking off defence. According to the learned counsel, in the reply to the application for striking off defence, it was specifically mentioned that written statement was ready and under the circumstances it could not be said that there was intentional or deliberate delay in filing the written statement necessitating striking off defence. He urged that provisions of Order 8 Rule 1 of the Code are not mandatory but directory in nature and under the circumstances, the striking off of defence of the defendants-petitioners is harsh and shall result in valuable substantive right being lost in respect of land in dispute. Reliance was placed on the judgments in Salem Advocate Bar Association v. Union of India 2005(3) RCR (Civil) 530 (SC), Smt. Rani Kusum v. Smt. Kanchan Devi and others, AIR 2005 SC 3304,Kailash v. Nanhku and others, 2005(4) SCC 480, M/s Panjon Ltd. v. M/s Dhingra Enterprises 2007(2) RCR (Civil) 715 and Zolba v. Keshao and others 2008(2) RCR (Civil) 869 in support of his submissions. 4. On the other hand, learned counsel for the plaintiff-respondents submitted that despite numerous opportunities having been provided to the petitioners-defendants, they have failed to file the written statement. He further submitted that even cost of Rs.300/-which was imposed upon the petitioners-defendants while setting aside ex-parte order dated 13.2.2009 had not been paid. He on the strength of judgment of the Supreme Court in Mohammed Yusuf v. Faij Mohammad and others, 2009(1) RCR (Civil) 633 submitted that allowing of written statement though it is directory but has to be in rare and exceptional cases. 5. After hearing learned counsel for the parties and perusing the record and in the interest of justice, the impugned order dated 6.11.2009 cannot be sustained and the present revision petition is allowed. 6. Order 8 Rule 1 of the Code is couched in the following words:- “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. Interpreting the aforesaid provision, it has been held by the Apex Court, that Order 8 Rule 1 is directory in nature and the court can allow filing of written statement even beyond 90 days provided the exceptional circumstances exist. Examining the facts of the present case, the petitioners-defendants appeared on 21.11.2008 whereas ex-parte proceedings were started on 13.2.2009 before filing of written statement which were set aside on 25.8.2009 when application for striking off defence was filed on the same day. The petitioners-defendants filed reply to the said application in which it was their categoric stand that written statement was ready. Since application under Order 8 Rule 1 of the Code was pending, therefore, written statement could not be filed till the same was adjudicated. Taking cumulative effect of the facts noticed above, it cannot be concluded that there was deliberate or intentional delay on the part of the defendants not to file the written statement in time. It was due to pendency of the application for setting aside ex-parte proceedings and also application filed under Order 8 Rule 1 of the Code. 8. In all fairness to the learned counsel for the respondents, reference is now made to Mohammed Yusuf's case (supra) on which strong reliance has been placed by him. The facts as noticed in that case were that a suit for decree for permanent injunction was filed in the year 2002 in which defendants were served on 6.7.2002 and had put in appearance through an advocate on 19.7.2002. The defendants had not filed the written statement inspite of availing numerous opportunities till the year 2005 when on 31.1.2005 the plaintiff filed an application for pronouncing judgment in terms of Order 8 Rule 10 of the Code. It was in those circumstances that the apex court concluded that filing of written statement beyond 90 days may be allowed in exceptional and rare cases where defendants may face extreme hardship and not in routine manner. Such is not the fact situation involved in the present case and, therefore, the said pronouncement does not advance the case of the plaintiffs-respondents. However, the plea relating to non-deposit of costs of Rs.300/-as raised by the learned counsel for the respondents-plaintiffs, the same was not the ground raised before the trial court and, therefore, does not arise for consideration from the impugned order. 9. However, the plea relating to non-deposit of costs of Rs.300/-as raised by the learned counsel for the respondents-plaintiffs, the same was not the ground raised before the trial court and, therefore, does not arise for consideration from the impugned order. 9. Accordingly, the written statement is allowed to be filed by the defendants subject to payment of Rs.5000/-as costs to be paid to the plaintiffs. In case the petitioner-defendants fail to pay the costs or to file the written statement on the date given by the trial court, the present petition shall be deemed to have been dismissed. 10. However, the trial court is directed to conclude the suit expeditiously preferably within one year.