Punjab-Haryana High Court
Gurbachan Singh vs Mehar Singh on 24 February, 2012
Author: Rajesh Bindal
Bench: Rajesh Bindal
Civil Revision No. 874 of 2012 (1)
IN THE PUNJAB AND HARYANA HIGH COURT
AT CHANDIGARH
Civil Revision No. 874 of 2012 (O&M)
Date of decision : 24.2.2012
Gurbachan Singh ..... Petitioner
vs
Mehar Singh ..... Respondent
Coram: Hon'ble Mr. Justice Rajesh Bindal
Present: Mr. Harish Sharma, Advocate, for the petitioner.
None for the respondent despite service.
Rajesh Bindal J.
In the present petition, the challenge is to the order dated 16.9.2011 passed by the learned court below, whereby on account of non- filing of written statement by the petitioner, his defence was struck off.
The proceedings in the present case arise out of a suit filed by the respondent against the petitioner for possession by way of specific performance of agreement to sell dated 10.12.2009.
Learned counsel for the petitioner submitted that notice of the suit was issued to the petitioner and he appeared through his counsel on 1.6.2011 and sought time to file written statement. As the talks for compromise were going on between the parties, the petitioner did not pursue the case. However, when he appeared before trial court, he found that his defence was struck off. It was submitted that delay in filing the written statement was not intentional. It was further submitted that evidence of the plaintiff is yet to start on 7.3.2012. The prayer is that order dated 16.9.2011 striking off defence of the petitioner be set aside and he be granted one opportunity to file the written statement. He has relied upon judgments of Hon'ble the Supreme Court in Kailash vs Nanhku and others, JT 2005(4) SC 204; Salem Advocate Bar Association, Tamil Nadu v. Union Civil Revision No. 874 of 2012 (2) of India, JT 2005(6) SC 486 and M/s R. N. Jadi and Brothers and others v. Subhashchandra, 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.
No one has appeared on behalf of the respondent despite service.
After hearing learned counsel for the petitioner, 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 in case sufficient cause is shown for its non- filing in time.
Considering the fact that though there is delay in filing of written statement by the petitioner but the same is not inordinate as it was alleged that talk of compromise was going on, I deem it appropriate to grant one opportunity to the petitioner to file written statement. Accordingly, the petition is accepted. The petitioner is permitted to file written statement, with an advance copy to counsel for the plaintiff-respondent on 3.3.2012 before the learned court below subject to payment of ` 3,000/- as costs to the respondent/plaintiff. The plaintiff-respondent shall file, replication if any, on or before 7.3.2012. The issues, if required, may be modified or reframed keeping in view the stand of the petitioner/defendant in the written statement to be filed, on the same day. Summoned witness shall be examined on the date already fixed.
The petition stands disposed of accordingly.
24.2.2012 (Rajesh Bindal) vs. Judge