Punjab-Haryana High Court
Ramesh Kumari And Another vs Rajeshwar Singh And Another on 23 October, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
CR No.740 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.740 of 2013
Date of Decision:23.10.2013
Ramesh Kumari and another
....Petitioners
Versus
Rajeshwar Singh and another
.....Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether reporters of the local papers may be allowed to
see the judgment?
2) To be referred to the Reporters or not?
3) Whether the judgment should be reported in the Digest?
Present: Mr. H.P.S.Kochhar, Advocate,
for the petitioners.
Mr. Bimal Maini, Advocate,
for respondent no.1.
****
PARAMJEET SINGH, J. (Oral)
Instant civil revision has been filed under Article 227 of the Constitution of India for setting aside the order dated 16.11.2012 passed by learned Civil Judge (Jr. Divn.), Dera Bassi whereby defence of petitioners-defendants no.1 and 2 has been struck off due to non-filing of written statement and reply to injunction application within stipulated period.
Shorn of unnecessary details, the facts relevant for disposal Kumar Parveen 2013.10.28 18:05 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.740 of 2013 2 of the present petition are to the effect that respondent no.1-plaintiff filed suit for declaration and possession with consequential relief of permanent injunction. In pursuance to notices, the petitioners put in appearance through their counsel on 23.03.2012, but the copies of plaint and injunction application were not received by the petitioners along with notices. Since, the petitioners were not provided with the copies of plaint and injunction application, therefore, they could not file written statement and reply to injunction application. Ultimately, vide impugned order dated 16.11.2012, defence of the petitioners has been struck off due to non-filing of written statement and reply to injunction application within time. Hence, this revision petition.
I have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioners vehemently contends that delay in filing written statement and reply to injunction application by the petitioners is not intentional, rather bona fide one. The learned counsel further contends that since copies of plaint and injunction application have not been provided to the petitioners, therefore, they could not file written statement and reply to injunction application in time. The learned counsel further contends that one opportunity may be given to the petitioners to file written statement and reply to injunction application which is necessary for proper adjudication of the suit.
Per contra, learned counsel for respondent no.1 contends that the petitioners were themselves negligent in filing written statement and reply to injunction application. The learned counsel further Kumar Parveen 2013.10.28 18:05 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.740 of 2013 3 contends that respondent no.1 is unnecessarily being harassed on account of delay caused by the petitioners.
I have considered the rival contentions of learned counsel for the parties.
Through this petition, the petitioners seek permission to file written statement and reply to injunction application. 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 Kumar Parveen 2013.10.28 18:05 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.740 of 2013 4 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. In the present case, 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.1 and 2 to file written statement and reply to injunction application, subject to costs of ` 5000/- (` 4,000/- to be deposited with the State Legal Services Authority, Punjab and ` 1,000/- to be paid to respondent no.1-plaintiff). Ordered accordingly. However, respondent no.1-plaintiff shall also be given an effective opportunity to file replication to written statement of the petitioners, if he so desires.
For the reasons stated above, the impugned order dated 16.11.2012 (Annexure P-2) is set aside. The revision petition is disposed of in the aforementioned terms.
However, trial Court is directed to make endeavour to dispose of suit as early as possible.
(Paramjeet Singh) Judge October 23, 2013 parveen kumar Kumar Parveen 2013.10.28 18:05 I attest to the accuracy and integrity of this document High Court, Chandigarh