Panjon Ltd. vs Dhingra Enterprises

S.S. Saron, J.—This revision petition has been filed against the order dated 22.2.2005 passed by the learned Additional Civil Judge (Senior Division), Jalandhar, whereby defence of the defendantpetitioner was struck off as he failed to file written statement within the stipulated period as provided under Order 8 Rule 1, CPC.

Ms. Jyoti Sareen, Advocate, learned counsel for the petitioner has referred to the interim orders dated 27.7.2004, 3.9.2004 and 6.10.2004 passed by the learned trial Court as reproduced in para 5 of this revision petition. It is contended that the defendantpetitioner has put in appearance on 27.7.2004 and on his request, the case was adjourned to 3.9.2004 for filing written statement. On 3.9.2004, on request the case was adjourned to 6.10.2004 for filing written statement. On 6.10.2004 written statement was filed and an application for striking off the defence of the defendantpetitioner was also filed. Thereafter, the impugned order dated 22.2.2005 was filed. It is contended that the written statement having already been filed, the learned trial Court erred in passing the impugned order.

After giving my thoughtful consideration to the matter, it is appropriate to note that the written statement had been filed by the defendantpetitioner on 6.10.2004 when the application for striking off the defence was filed by the plaintiffrespondent. The Hon'ble Supreme Court in Kailash v. Nanku and others, 2005(2) RCR(Civil) 379 (SC) has held that the provision of Order 8 Rule 1 CPC though couched in mandatory form is directory in nature being a provision in the domain of processual law. Besides, the written statement having already been filed, in my view, there was no occasion for the trial Court to strike off the defence of the defendants. It was held in Kailash's case (supra) that the purpose of providing the time schedule for filing the written statement under Order 8 Rule 1 CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though the language of the proviso to Rule 1 of Order 8 of the CPC is couched in negative form, it does not specify any penal consequences flowing from the non compliance. The provision being in the domain of the Procedural Law, it has to be held directory and not mandatory. The power of the Court to extend the time for filing the written statement beyond the time schedule provided by Order 8 Rule 1 CPC is not completely taken away.

In the circumstances, I am of the view that the learned trial Court has failed to exercise its jurisdiction in not extending the time for filing the written statement and striking off the defence of the defendantpetitioner.

For the foregoing reasons, this revision petition is allowed, the order dated 22.2.2005 is set aside and the written statement already filed by the defendantpetitioner shall be deemed to have been validly filed within time.