Manpreet Singh vs Prem Singh and Another

Ram Chand Gupta, J.

C.M. No. 13449-CII of 2011

Application is allowed subject to all just exceptions.

Civil Revision No. 3406 of 2011

The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 17.11.2010, Annexure P3, passed by learned Civil Judge, Junior Division, Chandigarh, vide which defence of Petitioner-Defendant No. 1 has been struck off.

I have heard learned Counsel for the Petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court.

It has been contended by learned Counsel for the Petitioner that parties are closely related as Respondent No. 1 is father of Petitioner. It is further contended that only one opportunity was granted to Petitioner by learned trial Court to file written statement and, however, his defence was struck off just on the plea that period of 30 days for filing the written statement has already been elapsed. However, it is further contended that provision of Order VIII Rule 1 of the CPC (for short Rs. the Code'') is not mandatory and the same is directory one and moreover no evidence has been recorded so far and hence, it is contended that only one opportunity may be granted to Petitioner-Defendant No. 1 to file written statement.

Perusal of the file shows that only one opportunity has been granted to Petitioner-Defendant No. 1 to file written statement and when the same was not filed, his defence was struck off.

Law has been well settled that provision of Order VIII Rule 1 of the Code is not mandatory and rather the same is directory. Only one opportunity has been granted to Petitioner by learned trial Court for filing written statement. No evidence of the Plaintiff has been recorded so far.

In view of these facts, one opportunity can be granted to the Petitioner to file written statement at his own responsibility and the other party can be compensated by way of cost.

Hence, the present revision petition is accepted. Impugned order is modified to the extent that learned trial Court is directed to grant one opportunity to Petitioner-Defendant No. 1 to file written statement subject to payment of Rs. 10,000/- as cost, which shall be a condition precedent.

Disposed of accordingly.