Narinder Mohan and Others vs Bakhshish Singh and Others

Nawab Singh, J.—This revision has been filed by defendants No. 3, 4, 5 and 28 against the order dated December 15th, 2012 passed by Additional Civil Judge (Senior Division), Gurdaspur whereby defence of the petitioners was struck off on account of non-filing of written-statement within stipulated period. For ready reference, impugned order is reproduced as under-

Written statement on behalf of defendants No. 3, 4, 5 and 28 not filed. Again date is prayed to file written statement. Perusal of file reveals that these defendants appeared through counsel on 10.9.2012 and since then the case is pending for filing of written statement. Since the written statement has not been filed on behalf of these defendants within requisite period. As such, the defence of these defendants for filing written statement stands struck off.

Remaining defendants not served. As such they be summoned on filing of correct address within two days for 14.1.2013.

Learned counsel for the petitioners has urged that the petitioners shall file written statement on the date fixed, that is, February 23rd, 2013.

A perusal of the order shows that the remaining defendants were not served upon. The suit is pending for February 23rd, 2013.

In Mr. Shaikh Salim Haji Abdul Khayumsab Vs. Mr. Kumar and Others, , Hon''ble Supreme Court commented upon the import of Order 8 Rule 1 of CPC by observing as under:-

Order VIII, Rule 1 after the amendment casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Further, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Substituted Order VIII, Rule 1 intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried.

All the rules of procedure are the handmaid of justice. The language employed by the draftsman of procession law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.

The procedural law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable. - Justice is the goal of jurisprudence - procession, as much as substantive. (See: Sushil Kumar Sen Vs. State of Bihar,

In view of the aforesaid dictum of law, this revision petition is allowed and the impugned order is set-aside. Consequently, the petitioners are accorded one opportunity to file written statement on the date fixed. Following Batala Machine Tools Workshop Cooperative v. Presiding Officer, Labour Court, Gurdaspur, (CWP No. 9563 of 2002, decided on June 27th, 2002) passed by a Division Bench of this Court, this petition is disposed of without issuing notice to the respondents with a view to impart substantive justice to the parties and to save the huge expenses, which may be incurred by the respondents as also in order to avoid unnecessary delay in adjudication of the matter. Still, if dissatisfied, the respondents may move this court for recalling this order.