IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 1899 of 2006 Date of Decision : July 9, 2009 Darshan Singh ....Petitioner Versus Sardool Singh and others .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : None for the petitioner. None for respondents No.2 and 3. T.P.S. MANN, J. (Oral) The present revision has been filed by Darshan Singh-defendant No.1 under Article 227 of the Constitution of India, wherein he has sought quashing/setting aside of order passed by the trial Court on 16.3.2005 vide which his and his wife's defence was struck off. As is apparent from the impugned order dated 16.3.2005 and the averments made in the present petition, the suit filed by Sardool Singh- respondent No.1 was fixed for appearance of the parties before the trial Court for 18.12.2004. On that date Shri Avtar Singh, Advocate put in appearance on behalf of the petitioner and his wife by filing memo. of parties and the case was adjourned to 16.3.2005 for filing of the Power of Attorney. However, on 16.3.2005 Shri Avtar Singh, Advocate did not file the Power of Attorney on behalf of the petitioner and his wife Mohinder Kaur and under these circumstances, the defence of the petitioner and his wife was struck off. Sardool Singh-respondent No.1 was the only contesting C.R. No. 1899 of 2006 -2- respondent in the present revision, being the sole plaintiff. However, as per the office report, Sardool Singh-respondent No.1 refused to accept the notice and under these circumstances, the Process Server had no other option but to affix the copy of the notice at his place. The refusal of Sardool Singh to accept the notice amounted to his due service but despite the same neither the said respondent nor any one on his behalf had put in appearance. To my mind, the approach of the learned trial Court in striking off the defence of the petitioner and his wife vide impugned order is too harsh and cannot be accepted. Shri Avtar Singh, Advocate had put in appearance on behalf of the petitioner and his wife on 18.12.2004 and then the proceedings in the suit were adjourned to 16.3.2005 with a direction to Shri Avtar Singh, Advocate to file Power of Attorney on the next date of hearing. As is apparent from the impugned order, Shri Avtar Singh, Advocate was present on behalf of the petitioner and his wife before the trial Court on 16.3.2005 although he did not file the Power of Attorney. In Salem Advocate Bar Association, Tamil Nadu V. Union of India (2005)6 JT (SC) 486, it has been held by the Hon'ble Supreme Court that the requirement under Order VIII Rule 1 C.P.C., for filing written statement within a period of 90 days is only directory in nature and non observance of the said condition would not entail striking off the defence of the defendant unless and until it was held that an attempt was being made by the defendant to delay the proceedings unnecessarily. Factually, even a period of 90 days had not expired since the appearance of defendants No.1 and 2 before the trial Court. In case such a period has to be calculated from C.R. No. 1899 of 2006 -3- the date of service of the summons, the defendants could have been granted one more opportunity so as to enable their counsel to file Power of Attorney. In view of the above, the present revision is allowed, the impugned order is set-aside and the trial Court is directed to grant one more but last opportunity to the counsel for the petitioner and his wife Mohinder Kaur to file Power of Attorney besides filing written statement on their behalf. ( T.P.S. MANN ) July 9, 2009 JUDGE ajay-1