Punjab-Haryana High Court
Paramjit Singh And Anr vs Surjit Singh And Anr on 15 September, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
RSA No. 5017 of 2010 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
-.-
RSA No. 5017 of 2010 (O&M)
Date of decision: 15.09.2014
Paramjit Singh and another ........ Appellants
Versus
Surjit Singh and another .......Respondent(s)
Coram: Hon'ble Mrs. Justice Rekha Mittal
-.-
Present: Mr. Baltej Singh Sidhu, Advocate
for the appellant
Ms Sonia G Singh, Advocate
for respondent No. 1
None for respondent No. 2
-.-
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in
the Digest?
Rekha Mittal, J.
The present regular second appeal has been directed against the judgments and decrees passed by the Courts below whereby the suit filed by the plaintiff/respondent for possession and injunction has been decreed by the trial Court and the findings recorded by the trial Court have been affirmed in appeal.
Surjit Singh, respondent/plaintiff filed the suit for possession of land measuring 17 kanals 7 marlas, detailed in the plaint and further sought MOHAN LAL BIMBRA 2014.09.29 16:04 I attest to the accuracy and integrity of this document Chandigarh RSA No. 5017 of 2010 (O&M) 2 permanent injunction restraining the defendants/appellants from raising any construction over the said land. As per the case set up by the plaintiff, he is the owner of the suit land, part of joint khewat recorded in the name of Harijan Co-operative Society Limited, Mansoorpur. The plaintiff is one of the co-sharers of the aforesaid society and was in cultivating possession of the suit land till June 2005 when defendants illegally and forcibly dispossessed the plaintiff and raised some construction.
The defendants filed the written statement which was taken on record subject to decision of the application filed by the plaintiff for striking off defence as the defendants failed to file the written statement within the stipulated period of 90 days.
The learned trial Court on the basis of evidence adduced by the plaintiff and in absence of any pleadings and evidence by the defendants as their defence was struck off, held in favour of the plaintiff, as a result, the suit of the plaintiff was decreed in regard to possession of the suit land and the defendants were restrained from raising any construction on the same.
The appeal preferred by the defendants did not find favour with the first appellate Court, therefore, the findings recorded by the learned trial Court were affirmed.
Still feeling dissatisfied, the matter has been carried in the present regular second appeal.
The sole submission made by counsel for the appellants is that the provisions of Order VIII Rule 1 of the Code of Civil Procedure (in short, 'CPC') are not mandatory but directory in nature. It is further argued that once written statement was filed and taken on record on the very same day MOHAN LAL BIMBRA 2014.09.29 16:04 I attest to the accuracy and integrity of this document Chandigarh RSA No. 5017 of 2010 (O&M) 3 on which an application was filed by the plaintiff for striking off defence for non-filing of the written statement, there was no reason for the Court to strike off defence leaving the defendants helpless to face a decree. It is further argued that discretion exercised by the trial Court for discarding the written statement of the defendants and depriving them of an opportunity to lead evidence to controvert the plea of the plaintiff has caused a serious prejudice to the defendants who have been directed to deliver possession of the suit land to the plaintiff. It is further argued that the discretion given to the Court has to be exercised judiciously and in absence of any mala fide on the part of the defendants in their failure to file the written statement within the period of 90 days, the trial Court should not have adopted a short cut method in adjudicating the rights of the parties.
Counsel for the respondent/plaintiff has submitted that as the defendants failed to file the written statement and adopted dilatory tactics and filed an application for appointment of Local Commissioner, the learned trial Court rightly passed adverse order against the defendants. It is further argued that in case the plea of the appellants is accepted and the judgments passed by the Courts below are set aside, it would prolong adjudication of the matter which was filed about ten years ago.
I have heard counsel for the parties and perused the records. The substantial question of law which arises for determination is 'whether the trial Court has rightly exercised its judicial discretion by passing order dated 07.06.2005 striking off defence of the defendants/appellants by invoking the provisions of Order VIII Rule 1 CPC.?' MOHAN LAL BIMBRA 2014.09.29 16:04 I attest to the accuracy and integrity of this document Chandigarh RSA No. 5017 of 2010 (O&M) 4 Perusal of various zimini orders reproduced in the grounds of appeal would evident that defendant No. 2 appeared in the trial Court on 09.11.2004 and the case was adjourned to 25.11.2004 for filing of written statement. Probably, no order was passed by the Court on 25.11.2004 and on the next date, i.e. 27.11.2004, written statement was to be filed when application was filed for appointment of Local Commissioner. The case was thereafter adjourned twice/thrice for filing reply to said application. Another application under Order XI Rules 14 and 15 CPC was filed and thereafter the case was adjourned for consideration of the application for appointment of Local Commissioner and reply to said application. The case remained pending for reply/consideration of said application till 07.01.2005. On 06.01.2005, case was adjourned to 12.02.2005 and on that day, the application for grant of injunction was allowed directing the parties to maintain status quo. Application under Order XXVI Rule 6 CPC was also allowed in view of consensus given by counsel for the parties and an Advocate was appointed as Local Commissioner to visit the spot and submit his report on or before 19.03.2005. The defendants were directed to file the written statement. On 19.03.2005, the Local Commissioner submitted his report and the case was adjourned to 16.04.2005 for filing written statement. On 16.04.2005, the case was adjourned for filing the written statement on 20.04.2005 subject to payment of Rs.200/- as cost but with order of last chance. It was on 20.04.2005, an application was filed by the plaintiff under Order VIII Rule 10 CPC for striking off defence for non-filing of written statement within 90 days. On the same day, written statement was filed and costs tendered but counsel for the plaintiff refused to accept the MOHAN LAL BIMBRA 2014.09.29 16:04 I attest to the accuracy and integrity of this document Chandigarh RSA No. 5017 of 2010 (O&M) 5 cost. Thereafter, the case was adjourned for 4-5 times for reply and then consideration of the application filed by the plaintiff which was eventually allowed on 07.06.2005 and defence of the defendants was struck off.
The question for adjudication is that once the trial Court on 16.04.2005 has provided an opportunity to the defendants to file the written statement on 20.04.2005 subject to payment of Rs.200/- as costs and the defendants as a matter of fact filed the written statement on 20.04.2005 and tendered costs but counsel opposite refused to accept the cost and the written statement was actually taken on record, was the trial Court justified in allowing the application of the plaintiff striking off the defence when otherwise the right of defence of a litigant is a valuable right being one of the principles of natural justice. The answer appears to be in the negative. Once the trial Court permitted the defendants to file the written statement on 20.04.2005 which shows that the trial Court had extended time upto 20.04.2005 for enabling the defendants to file the written statement and the defendants filed the written statement on 20.04.2005 and tendered costs in compliance with order dated 16.045.2005, the judicial discretion exercised by the trial Court in the circumstances of the present case in striking off defence of the defendants cannot stand the test of judicial scrutiny. I also find merit in the contention of the appellant/defendants that the provisions of Order VIII Rule 1 CPC are not mandatory but directory in nature. In this context, reference can be made to the judgment of this Court Swaran Ram and others v. Jaimal Ram, 2010(5) R.C.R. (Civil) 652, wherein reference has been made to a series of judgments rendered by the Courts with regard to nature of the provisions of Rule VIII Rule 1 CPC 'whether mandatory or MOHAN LAL BIMBRA 2014.09.29 16:04 I attest to the accuracy and integrity of this document Chandigarh RSA No. 5017 of 2010 (O&M) 6 directory'. As the defendants/appellants were wrongly denied their right to contest the proceedings by filing the written statement and leading evidence, the judgments and decrees passed by the Courts below cannot be allowed to sustain.
For the reasons aforesaid, the appeal is allowed, the judgments and decrees passed by the Courts below are set aside and the matter is remitted to the trial Court for adjudication afresh by taking into consideration the written statement filed by the defendants and thereafter framing the issues and permitting the parties to lead evidence, subject however to payment of costs of Rs.25,000/- to the other party. As the suit relating to the year 2004 has been revived on the board of the trial Court, the trial Court will put its strenuous efforts to decide the suit within a period of six months from the date, the parties put in appearance before it.
(Rekha Mittal) Judge 15.09.2014 mohan MOHAN LAL BIMBRA 2014.09.29 16:04 I attest to the accuracy and integrity of this document Chandigarh