Varun Electronics Vs. Daewoo Anchor Electronic Ltd. - Court Judgment

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Subject	Civil
Court	Punjab and Haryana High Court
Decided On	Jan-17-2006
Case Number	Civil Revision No. 6022 of 2005
Judge	Hemant Gupta, J.
Reported in	(2006)143PLR440
Acts	Code of Civil Procedure (CPC) , 1908 - Order 8, Rule 1
Appellant	Varun Electronics
Respondent	Daewoo Anchor Electronic Ltd.
Advocates:	Puneet Gupta, Adv.
Cases Referred	and Shaikh Salim Haji Abdul Khayumsab v. Kumar and Ors.

Excerpt:

- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party..........learned counsel for the petitioner argued that though the documents were supplied on 14.5.2004 but no reply to the application was filed and in fact the last opportunity recorded in the order dated 14.5.2004 was in relation to the reply to be filed by the plaintiff in relation to the application filed by the petitioner. the petitioner could not file written statement on account of the fact that the petitioner works and resided at karnal. even goods were delivered at karnal. there was some delay in filing of the written statement but it cannot be said that the delay on the part of the petitioner is intentional.5. in view of the above, i find that the order dated august 8, 2004 is wholly unjustified and the same is set aside. the petitioner is permitted to file written statement subject to payment of rs. 5000/- as costs for delay in filing the written statement.6. the written statement shall be now filed before the trial court on 20.2.2006. if the petitioner fails to file written statement on the said date and also to pay costs, the learned trial court shall proceed to decide the suit. but if the written statement is filed the court shall grant two opportunities to both the.....

Judgment:

Hemant Gupta, J.

1. The challenge in the present revision petition is to the order dated August 10, 2004 passed by the learned Civil Judge (Senior Division), Faridabad whereby the defence of the petitioner was struck off for not filing written statement within 90 days.

2. It has been held in Kailash v. Nanhkhu and Ors. : AIR 2005 SC2441 , Salem Advocate Bar Association, Tamil Nadu v. Union of India 2005(3) R.C.R. (Civil) 530 and Shaikh Salim Haji Abdul Khayumsab v. Kumar and Ors. : AIR 2006 SC396 that the provisions of Order 8 Rule 1 are not mandatory and if sufficient cause is shown, the defendant could be permitted to file written statement beyond a period of 90 days.

3. In the present case, the defendant had put in appearance on 7.1.2003. An application was filed by the defendant on the said date for production of certain documents. Such documents were supplied on 14.5.2004 and the case was fixed for 10.8.2004 for filing written statement. On account of failure to file the written statement on the said date the defence was struck off.

4. Learned Counsel for the petitioner argued that though the documents were supplied on 14.5.2004 but no reply to the application was filed and in fact the last opportunity recorded in the order dated 14.5.2004 was in relation to the reply to be filed by the plaintiff in relation to the application filed by the petitioner. The petitioner could not file written statement on account of the fact that the petitioner works and resided at Karnal. Even goods were delivered at Karnal. There was some delay in filing of the written statement but it cannot be said that the delay on the part of the petitioner is intentional.

5. In view of the above, I find that the order dated August 8, 2004 is wholly unjustified and the same is set aside. The petitioner is permitted to file written statement subject to payment of Rs. 5000/- as costs for delay in filing the written statement.

6. The written statement shall be now filed before the trial Court on 20.2.2006. If the petitioner fails to file written statement on the said date and also to pay costs, the learned trial court shall proceed to decide the suit. But if the written statement is filed the Court shall grant two opportunities to both the parties to lead evidence and decide the suit expeditiously.

7. Civil Revision stands disposed of accordingly.