Varinder Singh and Another vs Surinder Singh and Others

Rajesh Bindal, J.—In the present petition, the challenge is to the order dated 4.11.2008 passed by the learned court below, whereby on account of non-filing of written statement by the petitioners, their defence was struck off.

For the view I am taking in the present petition, I do not deem it appropriate to issue notice to the respondents, as the same would unnecessarily delay not only the disposal of the present petition but also the suit as well.

The proceedings in the present case arise out of a suit filed by the respondents-plaintiffs.

Learned Counsel for the petitioners submitted that petitioner No. 1 was served on 13.6.2008 and petitioner No. 2 on 13.8.2008 and on that day the case was adjourned to 11.9.2008. On the date fixed i.e. 11.9.2008, the case was further adjourned to 8.10.2008 for filing of written statement. On 8.10.2008, adjournment was granted for filing written statement subject to payment of cost of Rs. 300/-. He further submitted that on 4.11.2008, the written statement was ready but due to non-availability of the defendants-petitioners, the same could not be signed by them as they had gone out of station, and the learned court struck off the defence of the petitioners. He further submitted that no effective proceedings have taken place after the passing of the impugned order. He has relied upon judgments of Hon''ble the Supreme Court in Kailash Vs. Nanhku and Others, ; Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), and R.N. Jadi and Brothers and Others Vs. Subhashchandra, to submit that Order VIII Rule 1 of the CPC has been held to be directory in nature and not mandatory.

After hearing learned Counsel for the petitioners, I find merit in the contentions raised by him. It has been consistently opined by Hon''ble the Supreme Court in the judgments, referred to above, that Order VIII Rule 1 of the CPC which provides time for filing of written statement is directory in nature.

Accordingly, the petition is accepted. The petitioners are granted one opportunity to file written statement before the learned court below on or before the next date fixed i.e. 24.3.2009, subject to payment of Rs. 2,500/- as costs to the respondents.