The State of Haryana v. M/s National Data Processing Services & Ors.

CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Deepak Jindal, Assistant Advocate General, Haryana, T.P.S. MANN, J. (Oral) Vide order dated 11.9.2008, learned trial Court struck off the defence of defendant No.6-petitioner on the ground that written statement had not been filed within the stipulated period of 90 days from the first date of appearance. An application was, thereafter, moved by the petitioner before the trial Court for recalling the said order but the same had been dismissed on the ground that the Court had not been vested with powers to recall its own order. Hence, the present revision by defendant No.6 under Article 227 of the Constitution of India, wherein it has prayed for setting aside the aforementioned order. It is not in dispute that defendant No.6 had put in appearance before the trial Court on 31.5.2008 and as per the amended provisions of Code of Civil Procedure, the written statement was to be filed within a period of 90 days. However, no such written statement was filed upto 11.9.2008 and under these circumstances, learned trial Court struck off the defence of the aforementioned defendant. C.R. No. 3579 of 2009 - 2 - Learned counsel for the petitioner has submitted that the nature of the provisions contained in Order VIII Rule 1 C.P.C. was only procedural and not a part of the substantive law. This provision is only directory in nature and not mandatory. The object is only to expedite the hearing and not to scuttle the same. Reliance in this regard has been placed on Salem Advocate Bar Association, Tamil Nadu V. Union of India (2005)6 JT (SC)

In the case of Salem Advocate Bar Association (supra), the Hon'ble Supreme Court held that despite use of the word “shall” the Court had been given the discretion to pronounce or not to pronounce the judgment against the defendant even if the written statement is not filed and instead pass such order as it may think fit in relation to the suit. The provisions of Order VIII Rule 1 C.P.C. were held to be only directory in nature. There was no restriction in Order VIII Rule 10 that after the expiry of 90 days, further time could not be granted. Keeping in view the dictum of law as enunciated in the aforementioned judgment of the Hon'ble Supreme Court, it is held that one more but last opportunity needs to be granted to defendant No.6 to file its written statement before the trial Court. The revision is, accordingly, disposed of by granting one last opportunity to the defendant-petitioner to file its written statement before the trial Court within a period of three weeks from today. July 8, 2009 ajay-1 ( T.P.S. MANN ) JUDGE