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Himachal Pradesh High Court · body

2018 DIGILAW 1861 (HP)

Anil Sharma v. Meenakshi Sharma

2018-10-25

SANDEEP SHARMA

body2018
JUDGMENT : SANDEEP SHARMA, J. 1. Being aggrieved and dissatisfied with the passing of order dated 29.5.2018, passed by the learned Civil Judge (Jr. Div.) Court No.4, Shimla, in CS No. 22-1 of 2017, whereby application filed under Sections 148 read with Section 151 of CPC, seeking therein extension of time to file written statement, having been filed on behalf of the defendant-petitioner (hereinafter referred to as “the defendant”) came to be dismissed, defendant has approached this Court in the instant proceedings filed under Article 227 of the Constitution of India. 2. Despite service, none has come present on behalf of the plaintiff-respondent (hereinafter referred to as “the plaintiff”) and as such, she is ordered to be proceeded exparte. 3. Having heard learned counsel for the parties and perused material available on record vis-à-vis impugned order, this Court finds that court below vide order dated 27.4.2018, while disposing of the application filed under Order 8 Rule 1 read with Sections 148 and 151 CPC on behalf of the defendant, had granted time till 24.5.2018, to the defendant to file written statement, however fact remains that same was not filed on or before the stipulated date. 4. On 24.5.2018, defendant moved an application under Section 148 read with Section 151 CPC (Annexure P-5), praying therein for grant of two days’ time to file written statement, averring therein that counsel representing the defendant had wrongly noted the date to be 26.5.2018 instead of 24.5.2018. Applicant further averred in the application that fact with regard to the listing of the case on 24.5.2018, only came to the notice of the counsel, who was sitting in the other court in connection with some other case and as such, he of his own moved an application, seeking therein two days’ time to file written statement, but his prayer was not accepted on that day and ultimately, application having been filed by him, came to be rejected vide order dated 29.5.2018 (impugned herein), whereby court below struck off the defence of the defendant. In the aforesaid background, defendant has approached this Court in the instant proceedings. 5. In the aforesaid background, defendant has approached this Court in the instant proceedings. 5. Though, having perused orders dated 27.4.2018, passed by the court below (Annexure P-4), this Court finds no fault in the reasoning rendered by the court below while passing order dated 29.5.2018, because admittedly court below while passing aforesaid order had categorically recorded that written statement be filed on or before 24.5.2018, and no further opportunity shall be afforded, but in case explanation rendered in the subsequent application having been preferred on behalf of the defendant, is perused, this Court is of the view that court below could grant one more opportunity to the defendant subject to payment of costs. 6. Hon’ble Apex Court in plenty of cases, which have been otherwise taken note of by the learned court below in its earlier order dated 27.4.2018, has observed that provisions contained in order 8 Rule 1 CPC are not mandatory, rather same are directory in nature and as such, in exceptional circumstance, court can extend period beyond 90 days as far as filing of written statement is concerned. 7. In the case at hand, it is not in dispute that application for extension of time to file written statement came to be filed on 24.5.2018 i.e. the day when matter was fixed for fling written statement in terms of order dated 27.4.2018 and as such, it cannot be said that defendant was not diligent enough while prosecuting his case. 8. Consequently, in view of the above, this Court without going into the correctness of the impugned order passed by the court below, deems it fit to dispose of the present case by affording one last opportunity to the defendant to file written statement subject to payment of costs amounting to Rs. 5,000/-, payable to the plaintiff. Mr. Neeraj Gupta, learned counsel for the defendant, undertakes to file/present written statement as well as pay the costs either to the plaintiff or counsel representing him on or before 30.10.2018, failing which impugned order passed by the court below shall automatically revive. It is made clear that no more opportunity shall be afforded to the defendant to file written statement. In the aforesaid terms, present petition stands disposed of, so also pending application (s), if any.