Sheela and Another vs Dharampal and Others

Paramjeet Singh, J.—Instant civil revision has been filed under Article 227 of the Constitution of India for setting aside the order dated 12.11.2013 (Annexure P-2) passed by learned Additional Civil Judge (Sr. Divn.), Panipat whereby defence of petitioners has been struck off due to non-filing of written statement/reply within stipulated period. Shorn of unnecessary details, the facts relevant for disposal of the present petition are to the effect that respondent No. 1 filed petition u/s 15 of Haryana Municipal Corporation Act, 1994 challenging the election of petitioner No. 1, who has been elected as Municipal Counselor from Ward No. 23, Panipat. In pursuance to notice, the petitioners put in appearance through their counsel on 05.08.2013 and the case was adjourned for filing of written statement/reply. Vide impugned order dated 12.11.2013, defence of the petitioners has been struck off due to non-filing of written statement/reply within statutory period of 90 days.

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

Learned counsel for the petitioners vehemently contends that delay in filing written statement/reply by the petitioners is not intentional, rather BONA FIDE one. The learned counsel further contends that one opportunity may be given to the petitioners to file written statement/reply which is necessary for proper adjudication of the suit.

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

Through this petition, the petitioners seek permission to file reply. It is correct that proviso to Order VIII Rule 10 of the Code of Civil Procedure, 1908 (in short "the Code") lays down that where a person from whom a written statement/reply 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 VIII Rule 1 and Rule 10 of the Code, the doctrine of harmonious construction is required to be applied. The effect would be that under Order VIII Rule 10 of the Code, the Court has discretionary power to allow the defendant/respondent to file written statement/reply even after expiry of period of 90 days provided in Order VIII Rule 1 of the Code. Moreover, the said provision being rule of procedure has been 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 handmaiden 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/reply. In the present case, this court is of the considered opinion that without notice to the other party, at this stage, in order to avoid delay and expenses, ends of justice would be met if one effective opportunity is given to the petitioners to file reply/written statement, subject to costs of Rs. 3,000/- to be deposited with District Legal Services Authority, Panipat. Ordered accordingly.

For the reasons stated above, the impugned order dated 12.11.2013 (Annexure P-2) is set aside. The revision petition is allowed in the aforementioned terms. However, if respondent No. 1 feels aggrieved against this order, he will be at liberty to approach this Court.