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2013 DIGILAW 1451 (PNJ)

Sita Ram v. Gurbax Singh

2013-11-07

Paramjeet Singh

body2013
JUDGMENT Mr. Paramjeet Singh, J. (Oral):- Instant civil revision has been filed under Article 227 of the Constitution of India for setting aside the order dated 25.01.2013 (Annexure P-1) passed by learned Civil Judge (Jr. Divn.), Panchkula whereby defence of petitioners-defendants no.8 to 17 has been struck off due to non-filing of written statement. 2. Shorn of unnecessary details, the facts relevant for disposal of the present petition are to the effect that respondents no.1 to 4- plaintiffs filed suit for possession by partition and permanent injunction against the petitioners and others. In pursuance to notices, the petitioners put in appearance through their counsel on 27.03.2012 and case was adjourned to 04.05.2012 for filing written statement by the petitioners. On 04.05.2012, the petitioners did not file written statement, as they were under the wrong impression that till service of remaining defendants, they were not required to file written statement. The petitioners did not contact their counsel for filing written statement under the said wrong impression. On 21.01.2013, last opportunity was granted for filing written statement, however, the petitioners were not informed by their counsel about filing of written statement. Ultimately, vide impugned order dated 25.01.2013, defence of the petitioners has been struck off. Hence, this revision petition. 3. I have heard learned counsel for the petitioners and perused the record. 4. Learned counsel for the petitioners vehemently contends that delay in filing written statement by the petitioners is not intentional, rather bona fide one as noticed above. The case is at the initial stage and some of the defendants are yet to be served. The learned counsel further contends that one opportunity may be given to the petitioners to file written statement which is necessary for proper adjudication of the suit. 5. I have considered the contentions of learned counsel for the petitioners. 6. Through this petition, the petitioners seek permission to file written statement. It is correct that proviso to Order VIII Rule 10 of the Code of Civil Procedure, 1908 (in short “the Code”) lays down that where a person 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, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. In the context of the provision, despite use of the word ‘shall’, the Court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order VIII Rule 1 and Rule 10 of the Code, the doctrine of harmonious construction is required to be applied. The effect would be that under Order VIII Rule 10 of the Code, the Court has discretionary power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII Rule 1 of the Code. Moreover, the said provision being rule of procedure has been held to be directory and not mandatory in nature. This provision has to be applied with some flexibility and not with rigidity or inflexibility. Rules of procedure are handmaiden to the administration of justice and are meant to meet the ends of justice and not to thwart or obstruct the same. In Salem Advocate Bar Association, Tamil Nadu vs. Union of India AIR 2005 Supreme Court 3353, it has been held by the Hon’ble Supreme Court that in the facts and circumstances of a given case, more than 90 days can be granted for filing written statement. 7. The case in hand is at the initial stage and some of the defendants are yet to be served. In view of this, this Court is of the considered opinion that ends of justice would be met if one effective opportunity is given to the petitioners-defendants no.8 to 17 to file written statement, subject to costs of Rs. 5000/- to be deposited with the District Legal Services Authority, Panchkula. Ordered accordingly. The petitioners are directed to file written statement on the date fixed before the trial Court. 8. For the reasons stated above, the impugned order dated 25.01.2013 (Annexure P-1) is set aside. The revision petition is disposed of in the aforementioned terms without issuing notice to the respondents to avoid delay and expenses. 9. However, if the respondents feel aggrieved against this order, they will be at liberty to move this court. ---------0.B.S.0------------