Kapil Dev vs Sukhwinder Singh and Others

Ram Chand Gupta, J.—The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 29.11.2010, Annexure P1, vide which defence of Petitioner-Defendant No. 3 has been struck off.

I have heard learned Counsel for the Petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court.

Brief facts relevant for the decision of present revision petition are that a suit for recovery was filed by Respondent No. 1-Plaintiff against Respondent Nos. 2 to 4-Defendant Nos. 1, 2, 4 and present Petitioner-Defendant No. 3. Present Petitioner has been impleaded being employee of Respondent-Defendant-Bank. Several opportunities were granted by learned trial Court to Petitioner-Defendant No. 3 to file written statement and however, when he failed to file written statement, the impugned order, dated 29.11.2010 was passed, relevant part of which reads as under:

Written statement on behalf of Defendant No. 4 filed. Copy supplied. Costs of Rs. 200/- paid.

Today case was fixed for filing the written statement by Defendant No. 3 as last opportunity with cost of Rs. 200/-. But neither the Defendant No. 3 has filed the written statement nor he has paid cost despite availing last three opportunities.

Hence, the defence of the Defendant No. 3 is hereby ordered to be struck off....

It has been contended by learned Counsel for Petitioner-Defendant No. 3 that he be granted one opportunity to file written statement without specifying the reason as to why written statement was not filed earlier, even after availing three last opportunities, as has been observed by learned trial Court in the impugned order. He has also failed to satisfy this Court as to when he was served in this case and how much time he has taken for not filing the written statement.

It is pertinent to reproduce the relevant provision of Order VIII Rule 1 of the CPC (hereinafter to be referred as the `Code''), which reads as under:

Written statement

The Defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:

PROVIDED 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, but which shall not be later than ninety days from the date of service of summons.

A bare perusal of the aforesaid provision shows that Defendant is required to file the written statement within thirty days from the date of service of summons and however, learned trial Court may permit him to file written statement within ninety days from the date of service of summons on sufficient cause shown to the Court.

However, in this case, as is clear from the impugned order written statement was not filed even after availing three last opportunities.

Law is well settled in Surya Dev Rai v. Ram Chander Rai and Ors. 2004(1) RCR 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby.

Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order and that grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

The present revision petition is hereby dismissed being devoid of any merit.