Punjab-Haryana High Court
Nasero And Others vs Alisher on 25 May, 2011
Author: Ram Chand Gupta
Bench: Ram Chand Gupta
Civil Revision No.3432 of 2011(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Revision No.3432 of 2011(O&M)
Date of Decision: May 25, 2011
Nasero and others
.....Petitioners
v.
Alisher
.....Respondent
CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr.D.S.Adlakha, Advocate
for the petitioners.
.....
RAM CHAND GUPTA, J.(Oral)
C.M.No.13495-CII of 2011 Application is allowed subject to all just exceptions. Civil Revision No.3432 of 2011 The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 6.5.2011 passed by learned Civil Judge, Senior Division, Naraingarh, District Ambala, vide which defence of petitioners-defendants was ordered to be struck off for want of filing of written statement within prescribed period of 90 days.
I have heard learned counsel for the petitioners and have gone through the whole record carefully including the impugned order passed by learned trial Court.
It has been contended by learned counsel for the petitioners that though all the necessary documents were handed over by the petitioners, who are illiterate persons, to their counsel after receiving notice but due to negligence on the part of their counsel, written statement could not be filed within time and when petitioners came to know about this fact, they Civil Revision No.3432 of 2011(O&M) -2- engaged another counsel to appear on behalf of petitioner no.1, who is father and uncle of other petitioners and requested the Court for another date for filing written statement and, however the prayer of the petitioners was not accepted by learned trial Court on the plea that period of 90 days has already expired. It is further contended that provision of Order VIII Rule 1 of the Code of Civil Procedure (for short `the Code') is directory in nature and in view of this fact, one opportunity may be granted to petitioners to file written statement, which is already prepared.
Hon'ble Apex Court in Sardar Amarjit Singh Kalra (dead) by LRs and others v. Parmod Gupta (Smt.) (dead) by LRs and others, (2003) 3 SCC 272, had observed as under:-
".......Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal,property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice."
The said view was also reiterated by Hon'ble Apex Court in N.Balajit v. Virendra Singh and others, (2004) 8 Supreme Court Cases 312, wherein after noting ratio of the judgment, referred to above, in para 10 of the judgment it was observed that the procedure would not be used to discourage the substantial and effective justice but would be so construed as to advance the cause of justice.
Hon'ble Apex Court in Kailash v. Nankhu and others, 2005 (2) RCR (Civil) 379 and Smt.Rani Kusum v. Smt.Kanchan Devi and Civil Revision No.3432 of 2011(O&M) -3- others, 2005(3) RCR (Civil) 727, has held that provisions of Order VIII Rule 1 of the Code are directory and not mandatory in nature.
Hence, in a particular case, if a sufficient cause is shown, defendant can be permitted to file written statement after expiry of mandatory period of 90 days by learned trial Court but, defendant has to make out a case and has to show sufficient cause for not filing the written statement within a period of 90 days.
In the present case, plea taken by petitioners-defendants is that written statement was not filed by them within stipulated period of 90 days due to negligence of their counsel. It has also been contended that due to this reason, petitioners have changed their counsel and requested one date from learned trial Court for filing written statement and, however, their request was not accepted by learned trial Court.
In view of these facts, one opportunity can be granted to the petitioners to file written statement and the other party can be compensated by way of cost.
Hence, the present revision petition is accepted. Impugned order is set aside. Learned trial Court is directed to grant one opportunity to the petitioners to place on record written statement subject to payment of `10,000/- as cost, which shall be a condition precedent.
However, at this stage, no notice is being issued to the opposite party, because if the respondents are summoned to contest this litigation, it may involve huge expenditure and unnecessary harassment and delay of the proceedings filed by respondents-plaintiffs. For this view, reliance can be placed upon a Division Bench judgment of this Court rendered in Batala Machine Tools Workshop Co-op v. Presiding Officer, Labour Court, Civil Revision No.3432 of 2011(O&M) -4- Gurdaspur, CWP No.9563 of 2002, decided on 27.6.2002, wherein it was observed as under:-
" We are conscious of the fact that the instant order is detrimental to the interest of the respondent-workman. We are also conscious of the fact that no notice has been given to the respondent-workman before the instant order has been passed. The reasons for not issuing notice to the respondent workman is to ensure that he does not have to incur unnecessary expenses in engaging counsel to appear on his behalf in this Court. The instant order by which the present petition is being disposed of fully protects the interest of the respondent-workman inasmuch as the amount determined by the Labour Court, Gurdaspur, by its order dated 22.5.2002 has been required to be deposited by the petitioner- Management before the Labour Court/Labour-cum- Conciliation Officer, Gurdaspur."
However, liberty is granted to the respondent to get this revision petition revived if he feels dissatisfied with this order.
Petitioners are also directed to file written statement before learned trial Court on or before the next date fixed, which is stated to be 7.6.2011.
25.5.2011 (Ram Chand Gupta) meenu Judge
Note: Whether to be referred to Reporter? Yes/No. Civil Revision No.3432 of 2011(O&M) -5-