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Punjab-Haryana High Court

Amandeep Kaur And Others vs M/S Dashmesh Rice Mills And Others on 28 September, 2011

Author: Ram Chand Gupta

Bench: Ram Chand Gupta

      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH




                                   Civil Revision No. 2717 of 2011(O&M)
                                   Date of Decision: September 28, 2011.


Amandeep Kaur and others.
                                                  ...... PETITIONER(s)

                                  Versus

M/s Dashmesh Rice Mills and others.
                                                  ...... RESPONDENT (s)


CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA


Present:   Mr. D.N.Ganeriwala,
           Advocate for the petitioners.

           Mr. G.N.Malik,
           Advocate for respondents no.2 and 3.

           None for respondent no.4.

                       *****


RAM CHAND GUPTA, J.(Oral)

Respondent no.4 also duly served through counsel in the trial Court. However, none appeared. Hence, she is proceeded ex parte.

Petitioners have invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India for setting aside impugned order dated 17.09.2010 passed by learned Civil Judge(Junior Division), CR No.2717 of 2011 2 Malerkotla vide which defence of present petitioners-defendants was struck off.

I have heard learned counsel for the parties and have gone through the whole record including the impugned order passed by learned trial Court.

Brief facts relevant for the decision of the present revision petition are that, respondents-plaintiffs filed suit for declaration to the effect that they are owners in possession of the land in dispute. Notice of the suit was given to defendants. Counsel appeared for defendants no.2 to 5 on 18.07.2009 and requested a date to file written statement. As defendant no.1 had expired, his LRs were brought on the record. Thereafter, written statement was not filed on behalf of defendants no.2 to 5 i.e. present petitioners despite taking several opportunities. Impugned order was passed on 17.09.2010 striking off the defence of present petitioners-defendants when neither previous cost was paid nor written statement was filed. The impugned order reads as under:-

"Neither the costs paid nor written statement filed by defendant No.1, 3 to 5. Adjournment is requested. Perusal of the file reveals that defendant no.1, 3 to 5 availed effective opportunities including the last opportunity but failed to file the written statement. The Court has no justification to grant further opportunity for the same purpose. Hence, the defence of Defendants No.1, 3 to 5 is struck off. Now, the case is adjourned to 13.11.2010 for evidence of the plaintiff on filing of PF/DM/List of witnesses etc. within seven days."

It has been contended by learned counsel for the petitioners that only one opportunity be granted to present petitioners-defendants to file written statement. It has been further contended that provision of Order VIII Rule 1 of Civil Procedure Code are only directly and not mandatory.

On the other hand, it has been argued by learned counsel for the respondents-plaintiffs that written statement was not filed even after about one year two months of the appearance on behalf of present petitioners- defendants in this case. Whereas in this case written statement was required to be filed within thirty days of the appearance and with the permission of the court within 90 days. He has further contended that even after passing of order dated 17.09.2010, the present revision petition was not filed immediately thereafter and that initially revision petition was filed after about four months of the said order, which was got dismissed as withdrawn and the present revision petition has been filed after more than one month.

It is pertinent to reproduce Order VIII Rule 1 of CPC, which reads as under:-

"1. Written Statement. -The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons."

A bare perusal of aforementioned provision shows that written statement is to be filed within 30 days from the date of service of summons on defendant and if he fails to file the same within the said period of 30 days he can be allowed to file the same thereafter with the permission of the court if sufficient cause is shown and however, the same shall not be later than ninety days.

Even if the said provision is taken to be directory in nature, it cannot be said that the same can be completely taken off the record. Petitioners-defendants have to make out a sufficient cause for permitting them to file written statement after about one year two months of their first appearance. No cause, what to talk of sufficient cause, is made out by petitioners-defendants for not filing the written statement even after one year two months of their first appearance. Even previous cost was not paid.

In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others, 2003(6) SCC 675: AIR 2003 SC 3044: 2004(1) RCR (Civil) 147 that supervisory jurisdiction is not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors for drawing inference like a Court of appeal. It has been observed as under:-

"Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby."

Hence, the present revision petition is, hereby, dismissed being devoid of any merit.

( RAM CHAND GUPTA ) September 28, 2011. JUDGE 'om'