Mohakam Singh vs Karan Kumar

Alok Singh, J.—Defendant/Petitioner is assailing order dated 18.10.2010 passed by Additional Civil Judge (Senior Division), Gidderbaha, whereby defence of the Defendant was directed to be struck off for non-filing of written statement within the time fixed.

Respondent is reported having been served, however, none is present on behalf of the Respondent.

Learned Counsel for the Defendant/Petitioner states that written statement is ready and shall be filed before the trial Court on or before the next date fixed before the trial Court. He states that written statement could not be filed within time because Defendant could not approach his Advocate in time because of his serious illness of cancer.

Hon''ble Apex Court in the matter of Kailash Vs. Nanhku and Others, while interpreting provisions of Order 8 Rule 1 CPC has observed that provisions of Rule 1 of Order 8 CPC are not mandatory but are directive and procedural and in appropriate cases on sufficient cause being shown for not-filing written statement within stipulated period, Court has every power to take on record written statement beyond the stipulated period.

Considering all the facts and circumstances of the case and keeping in mind, the golden rule that none should be given walk over and lis between the parties, as far as possible, should be decided at its own merit after affording sufficient opportunities to both the parties to place on record pleading, material and evidence, I direct that Defendant shall file written statement on or before the next date fixed before the trial Court. Defendant/Petitioner shall also pay Rs. 5,000/- as cost to the Plaintiff on or before the next date fixed. Learned trial Court thereafter shall proceed with the case in accordance with law.

Order impugned stands set aside. Petition stands allowed.