Pritam Singh v. Rupinder Kaur

HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Rakesh Kumar, Advocate for the petitioner. Jaswant Singh, J (Oral) This petition under Article 227 of the Constitution of India has been filed by the petitioner, challenging order dated 10.3.2008 passed by Civil Judge(Jr.Division), Batala vide which, the defence of the petitioner- defendant No.1 has been struck off due to non-filing of the written statement within the stipulated period of 90 days. It is stated that respondent-plaintiff Rupinder Kaur has filed a suit for possession of a land measuring 45 kanals, 16 marlas with mesne profit from Hari 2004 onwards as the suit property is in illegal possession of the defendants since February, 2004. It is further stated that by 10.3.2008, when the impugned order was passed, defendant No.2 had not yet been served and petitioner-defendant No.1 had, after collecting all the relevant documents, after great difficulty, necessary for preparation of the written statement, submitted them to his counsel, who, due to his personal difficulty, could not prepare and file the same by the said date.

Accordingly, counsel for petitioner-defendant No.1 sought a short adjournment for filing of the written statement. Learned Trial Court vide its impugned order dated 10.3.2008 declined the prayer and defence of the petitioner-defendant No.1 was struck off. Learned counsel for the petitioner-defendant No.1 submits that the filing of the written statement in the facts of the case is essential for proper adjudication of the suit and non-filing of the written statement within Civil Revision No.2703 of 2008 #2# the stipulated 90 days was bonafide and beyond the control of petitioner- defendant No.1 and was only on account of personal difficulty of his counsel. Learned counsel further cites 2005 (4) Supreme Court Cases, 480, Kailash v. Nanhku and Others and 2006 (1) Supreme Court Cases, 46, Shaik Salim Haji Abdul Khyamsab v. Kumar and Others, to contend that the time limit of 90 days as prescribed by the proviso appended to under Order 8 Rule 1 CPC is directory in nature being in the realm of procedural law.

Hon'ble Supreme Court in both the cited cases has held that though obligation is cast on the defendants to file their written statement within the stipulated period, however, in the endeavour to expedite the hearing and disposal of the suits, the interests of the defendants should not be sacrificed by denying them a right to put up their defence. In given cases on payment of compensatory costs and to meet the ends of justice, the Courts have the power to grant extension of time for filing the written statement. After giving my thoughtful consideration to the facts of the case and the ratio of the cited judgments, I, to advance the cause of justice, deem it just and expedient to grant one opportunity to the petitioner- defendant No.1 for filing his written statement subject to payment of Rs.10,000/- as costs. Notice to the respondent-plaintiff is not being issued to avoid unnecessary expenses and delay in the matter as also the fact that the respondent is being compensated by payment of costs.