Sanjay Goel vs Atul Goyal and Others

Paramjeet Singh, J.—Instant revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 05.03.2010 as well as the order dated 02.03.2013 passed by learned Civil Judge (Junior Division), Jagadhri, whereby defence of the petitioner has been struck off for non-filing of written statement. Briefly stated, the facts of the present case are that respondent No. 1/plaintiff filed a suit for mandatory injunction directing petitioner/defendant No. 1 to hand over the possession of truck No. HR-58-2428 to the plaintiff and also to pay the mesne profit for illegal use and occupation of the said truck till the delivery of possession and for directing respondent/defendants No. 2 and 3 to restore the ownership of the said vehicle in the name of plaintiff, consequently for permanent injunction restraining the respondent/defendants from further transferring the truck in question in favour of any other person forcibly and illegally in any manner whatsoever. The case was listed on 07.11.2009 for filing of written statement on behalf of petitioner/defendant No. 1. However, due to non-filing of the written statement on the date fixed, case was adjourned to 07.02.2010. Again on 07.02.2010 written statement was not filed and the case was adjourned to 05.03.2010. Even on 05.03.2010 written statement was not filed on behalf of petitioner/defendant, therefore, the learned trial court struck off the defence of petitioner/defendant No. 1. Hence this revision petition.

I have heard learned counsel for the petitioner and perused the record.

Learned counsel for the petitioner contended that delay in filing written statement by the petitioner is not intentional, rather bona fide one. The learned counsel further prayed that one opportunity may be given to the petitioner to file written statement which is necessary for proper adjudication of the suit.

I have considered the contentions of learned counsel for the petitioner.

Through this petition, the petitioner seeks permission to file written statement. It is correct that proviso to Order 8 Rule 10 of CPC lays down that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. In the context of the provision, despite use of the word ''shall'', the Court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order 8 Rule 1 and Rule 10 of CPC, the doctrine of harmonious construction is required to be applied. The effect would be that under Order 8 Rule 10 of CPC, the Court has discretionary power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order 8 Rule 1 of CPC. Moreover, the said provision being rule of procedure has to be held to be directory and not mandatory in nature. This provision has to be applied with some flexibility and not with rigidity or inflexibility. Rules of procedure are handmaid to the administration of justice and are meant to meet the ends of justice and not to thwart or obstruct the same. In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), , it has been held by the Hon''ble Supreme Court that in the facts and circumstances of a given case, more than 90 days can be granted for filing written statement. In the present case, this Court is of the considered opinion that ends of justice would be met if the petitioner is granted one opportunity to file written statement in trial court subject to costs. However, respondent/plaintiff shall also be given an effective opportunity to file replication to written statement of petitioner, if he so desires.

For the reasons stated above, the impugned orders are set aside. Petitioner is granted one opportunity to file written statement, subject to costs quantified at Rs. 5,000/-.

Disposed of.

This revision has been disposed of without notice to the respondents with a view to avoid delay and expense in view of the nature of the order that has been passed. Liberty is granted to the respondents to move this court if they are aggrieved against the order.