C.R. No. 5585 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 5585 of 2011 Date of Decision: 15.9.2011 Mukhjinder Pal Singh Sidhu ....Petitioner. Versus Rajinder Kaur and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Krishan Sehajpal, Advocate for the petitioner. AJAY KUMAR MITTAL, J. 1. In this revision petition filed under Article 227 of the Constitution of India by the plaintiff-petitioner, the prayer is for setting aside the order dated 6.8.2011 whereby the application filed by the petitioner for striking off the defence of the defendant-respondents had been dismissed and the written statement already filed by the defendants was allowed to be taken on record subject to payment of Rs.1000/- as costs. 2. Briefly the facts as narrated in the petition may be noticed. The plaintiff-petitioner filed a suit for possession by way of specific performance of agreement to sell dated 13.8.2008. On 30.4.2010, notice of the suit was issued to the defendants for 15.5.2010. Power of attorney on behalf of defendants No.3 to 6 was filed whereas defendants No.1 and 2 had not been served and accordingly fresh C.R. No. 5585 of 2011 -2- summons were issued for 7.8.2010. Defendants No.1 and 2 sought time on 7.8.2010 for filing of written statement and case was adjourned to 4.9.2010 and was again adjourned on 4.9.2010 to 13.11.2010 for filing of written statement as the defendants did not file the written statement. On 13.11.2010, written statement was filed by defendants No.1 and 2. However, an application was filed by the plaintiff under Order 8 Rule 1 of the Code of Civil Procedure (in short “the Code”) for striking off the defence of the defendants for not having filed the written statement within 90 days from the date of the appearance. The trial court noted that the written statement had been filed on 13.11.2010 which was on record and the written statement was allowed to be filed subject to payment of Rs.1000/- as costs. 3. Learned counsel for the petitioner submitted that the defendant-respondents had not filed the written statement within 90 days of appearance and therefore, trial court had wrongly dismissed the application filed by the plaintiff-petitioner for striking off the defence of the respondents-defendants. Support was sought to be drawn from the Apex Court judgment in Mohammed Yusuf v. Faij Mohammed and others, 2009 (3) SCC 513. 4. I have given my thoughtful consideration to the argument of learned counsel for the petitioner and do not find any substance therein. 5. Order 8 Rule 1 of the Code provides time during which written statement is required to be filed. The Apex Court in Zolba v. Keshao and others 2008(2) RCR (Civil) 869 and Salem Advocate Bar Association v. Union of India, 2005 (3) RCR (Civil) 530 had held that the said provisions are not mandatory but directory and the court C.R. No. 5585 of 2011 -3- can allow the defendants to file the written statement even beyond 90 days if exceptional circumstances have been made out. The observations of the Supreme Court in Zolba's case (supra) are as under:- “8. Therefore, following the principles laid down in the decision, as noted hereinabove, it would be open to the court to permit the appellant to file his written statement if exceptional circumstances have been made out. It cannot also be forgotten that in an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Therefore, unless compelled by express and specific language of the statute, the provisions of Order 8 Rule 1 of CPC or any procedural enactment should not be construed in a manner, which would leave the court helpless to meet extraordinary situations in the ends of justice.” 6. Adverting to the facts of the present case, defendants No.1 and 2 had put in appearance on 7.8.2010 when the case was adjourned to 4.9.2010 for filing the written statement. Again on 4.9.2010, an adjournment was sought for filing written statement and the matter was adjourned to 13.11.2010 on which date the written statement was filed. Under the circumstances, it cannot be held that defendants No.1 and 2 were negligent in filing the written statement belatedly. The trial court had dismissed the application of the plaintiff-petitioner with the following observations:- C.R. No. 5585 of 2011 -4- “I have heard learned counsel for the parties and also gone through the record. Defendant has referred to certain document which was to be filed by the plaintiff. But those documents are already on the file. Therefore, I do not find any force in the contention of the defendant that the delay was caused due to that fact. Moreover written statement was filed on the same date, i.e. 13.11.2010, on that day when the application filed by the applicant. Moreover as per the written statement it is prepared on 4.9.2010. Therefore, it seems that the defendants have willfully neglected to place written statement on the file within the stipulated date. However, in the interest of justice, as the written statement is already on the file. Therefore the same is allowed subject to the payment of cost of Rs.1000/- to be paid by both set of defendants to the plaintiff on the next date of hearing i.e. 20.8.2011. Replication as well consideration on the stay application also will be heard on the said date.” 7. Adverting to the judgment reported in Mohammed Yusuf's case (supra) relied upon by the learned counsel for the petitioner, suffice it to notice that the factual situation being different therein, the same does not advance the case of the petitioner. The defendant therein after putting in appearance through Advocate on 19.7.2002 did not file the written statement inspite of seeking various opportunities till C.R. No. 5585 of 2011 -5- the year 2005 when on 31.1.2005 the plaintiff filed an application for pronouncing judgment in terms of Order 8 Rule 10 of the Code which is not the factual situation herein. 8. In view of the above, the order passed by the trial court does not suffer from any illegality or perversity which may warrant interference by this Court. Accordingly, there is no merit in this revision petition and the same is hereby dismissed. September 15, 2011 (AJAY KUMAR MITTAL) gbs JUDGE