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2015 DIGILAW 285 (CAL)

Jetage Construction Pvt. Ltd. represented by its Directors v. Abdul Khalique & Sons Restaurant

2015-03-25

HARISH TANDON

body2015
JUDGMENT : Harish Tandon, J. All the three revisional applications are filed at the instance of the defendant nos. 1 to 4 challenging the order by which the Court fixed the suit at ex parte board upon refusal to permit them to file the written-statement in the suit. The plaintiffs/opposite parties filed the aforesaid suits for declaration of their tenancy right in respect of the suit premises against the opposite parties treating them to be the landlords. 2. Applications for temporary injunction were taken out in the said suits wherein the Court passed an ex parte ad interim order of injunction. The service was effected under Order 39, Rule 3 of the Code of Civil Procedure upon the petitioners herein who entered appearance in the said application and took step to contest the said application. 3. The entire order-sheets are annexed to this revisional application wherefrom it does not reveal that any attempt on the part of the petitioners were made which may tantamount to taking step to contest the suit. 4. Order 8, Rule 1 of the Code of Civil Procedure postulates the time limit within which the defendant should deliver his defence by filing written-statement. The limitation shall reckon from the date of service of summons. 5. Order 5, Rule 9 (5) of the Code casts duty on the Court to declare the service having effected on the defendants so that the period provided under Order 8, Rule 1 of the Code can be said to have commenced. There is no declaration to that effect that the service of summons is effected upon the petitioners. Mere appearance on the basis of a notice under Order 39, Rule 3 of the Code cannot be equated with the service of summons in the suit. Furthermore, the Court overlooked the provision of Order 9, Rule 7 of the Code of Civil Procedure, which empowers the Court to take off the suit from the ex parte board and permit the defendants to file written statement. Even after the amendment having brought in the Code of Civil Procedure in the year 2002, the provision under Order 9, Rule 7 of the Code was untouched and unaltered. 6. It is no longer res integra that the provisions contained under Order 8, Rule 1 of the Code is directory in nature and not mandatory. Even after the amendment having brought in the Code of Civil Procedure in the year 2002, the provision under Order 9, Rule 7 of the Code was untouched and unaltered. 6. It is no longer res integra that the provisions contained under Order 8, Rule 1 of the Code is directory in nature and not mandatory. The Court in exceptional and extraordinary circumstances can enlarge the time for filing written-statement but the avoidance should be made against the routine extension. 7. In the instant case, this Court does not find that there is any declaration by the Court on the service of summons having effected on the defendants/petitioners and, therefore, there was no justification in denying the petitioners to file the written-statement and fixing the matter at the ex parte board. 8. This Court, therefore, finds that the order impugned in above revisional applications suffer from illegality and/or infirmity. The impugned orders are, thus, set aside. 9. The defendants/petitioners are directed to file the written-statement within thirty days from date before the Trial Court. The Trial Court is requested to make endeavour to dispose of the suit as quickly as possible without granting unnecessary adjournments to either of the parties. With these observations, the revisional applications are disposed of. No order as to costs.