Raj Kumar Vs. Rati Ram and anr. - Court Judgment

Satish Kumar Mittal, J.

1. The defendant Raj Kumar has filed this petition under Article 227 of the Constitution of India for setting aside the Orders dated 18.10.2002 vide which his defence was struck off because of non-filing of the written statement within the time granted and dated 24.12.2003 passed by the Civil Judge (Jr. Division), Karnal vide which his application for recalling the said order has been dismissed.

2. In the suit for declaration and permanent injunction filed by respondent No. l, the petitioner was served through Munadi on 19.9.2002. On that date, he appeared through his Advocate and the case was adjourned for 11.10.2002 for filing of the written statement. On that date, written statement was not filed on behalf of the petitioner and on request the case was again adjourned for 16.10.2002 for filing the written statement. On that date, again a request was made for filing the written statement and the case was adjourned for 18.10.2002 for the said purpose and last opportunity was granted. On the extended date i.e. 18.10.2002, the written statement was not filed on behalf of the petitioner and again a request for adjournment was made. The said request was declined since that was the last opportunity and the defence of the petitioner was struck off for non filing of the written statement under Order 8 Rule 1 C.P.C, Immediately, on the next date, the petitioner filed an application for recalling of the said order, and for giving him permission to file the written statement. The said application was also dismissed vide order dated December 24, 2003.

3. 1 have heard the counsel for the parties. In this case, the defence of the petitioner was struck-off within 30 days as the petitioner put appearance on 19.9.2002 and the defence was struck off on 18,10.2002. Though as per Order 8 Rule 1 C.P.C. the defendant is required to file the written statement within 30 days from the date of service of summons, but the proviso to the said Rule provides that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, which shall not be later than ninety days from the date of service of summons. In the case, twice the time for filing the written statement was extended and last opportunity was granted to the petitioner to file the written statement. On 18.10.2002, the defence of defendant No. 2 was struck-off while rejecting the prayer for further adjournment. In these facts, 1 am of the opinion that since only 30 days had expired, the trial Court should have further extended the time for filing the written statement as the period of 90 days had not elapsed by that time. Thus, in view of law laid by the Hon'ble Apex Court in Smt. Rani Kusum v. Smt. Kanchan Devi and Ors. : AIR2005SC3304 and Kailash v. Nankhu and Ors. : AIR2005SC2441 where the provisions of Order 8 Rule 1 C.P.C. have been held to be directory and not mandatory, and keeping in view the aforesaid facts and circumstances of the case, it will be in the interest of justice to set aside the impugned orders and to grant one month time to the petitioner to file the written statement.

4. Hence, this petition is allowed and the impugned orders dated 18.12.2002 and 24.12.2003 passed by the Civil Judge (Junior Division), Karnal are set aside the petitioner is granted one month time to file the written statement subject to payment of costs of Rs. 500/-.