1 C.R. No. 5640 of 2008 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH --- Civil Revision No. 5640 of 2008 Date of Decision: 26.8.2009 Mool Raj --- Petitioner Versus Kishan Chand --- Respondent CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL *** PRESENT: Mr. Gaurav Bhayyia, Advocate for the petitioner. Mr. S.K. Arora, Advocate for the respondent. --- AJAY KUMAR MITTAL, J The respondent-plaintiff herein filed a suit for separate possession by way of partition of the properties by metes and bounds against the defendant-petitioner, which is pending in the court of Additional Civil Judge, Jalalabad. The suit was filed on 26.5.2007 wherein the defendant put in appearance on 26.9.2007. The defendant, however, failed to file written statement within the statutory period of 90 days as provided under Order 8 Rule 1 of the Code of Civil Procedure. The trial court, thus, struck off the defence of the defendant vide order dated 15.1.2008. 2 C.R. No. 5640 of 2008 The petitioner thereafter moved an application seeking permission of the trial court to file written statement. It was primarily averred therein that written statement could not be prepared due to non-availability of the record relating to earlier litigation. The prayer made in the application was opposed by the plaintiff. The trial court dismissed the application vide order dated 24.9.2008. While doing so, it was observed that the defendant had failed to file written statement despite availing sufficient adjournments; the order striking off the defence was passed after the statutory period of 90 days had elapsed, and also that the defendant was required to file civil revision in this Court instead of moving the application under reference. It is this order as well as the order dated 15.1.2008 whereby the defence of the petitioner was struck off, which have been impugned by the defendant in this petition filed under Article 227 of the Constitution of India. Learned counsel appearing for the petitioner submitted that despite sincere efforts, the written statement could not be filed within the time permitted by law and the written statement is quite necessary for proper adjudication of the controversy in the suit. The counsel submitted that if the defendant-petitioner is not permitted to file written statement, he would not be able to defend the cause set out in the suit. The counsel further submitted that, if permitted, the defendant-petitioner will file written statement on the next date of hearing and for that the plaintiff can be compensated by way of costs. 3 C.R. No. 5640 of 2008 The counsel appearing for the respondent, however, opposed the prayer of petitioner’s counsel. I have heard learned counsel appearing for the parties and considered the submissions made by them. The provisions of Order VIII, Rule 1 of the CPC are a part of Procedural Law and are directory in nature, keeping in view the need for expeditious trial of civil cases. The time schedule contained in those provisions is to be followed as a rule and departure there from is an exception. Written statement may be allowed to be filed if it was needed to be so done in circumstances which are exceptional and occasioned by reasons beyond the control of the defendant and also where it is found that grave injustice would be caused if permission to file written statement is denied. After hearing learned counsel for the petitioner and having regard to the facts and circumstances of the case, this Court is satisfied that in the interest of justice, the petitioner deserves to be granted one opportunity to file written statement. It was a suit between two real brothers for separate possession by way of partition of the properties by metes and bounds. It is clear from the impugned order that the defendant had changed his counsel who got only one occasion to prepare and file written statement, but he could not do so because of non-availability of certain record pertaining to the previous litigation. In the facts and circumstances of the case, the defendant- petitioner is granted one opportunity to file written statement on the 4 C.R. No. 5640 of 2008 next date of hearing fixed in the suit. The filing of the written statement is subject to payment of Rs. 3,000/- as costs payable to the plaintiff. It is made clear that in case the petitioner fails to either furnish the written statement or pay the costs, as ordered herein, the present revision petition shall be deemed to have been automatically dismissed without further reference to the Court. The revision petition is disposed of accordingly. (AJAY KUMAR MITTAL) August 26, 2009 JUDGE *RKMALIK