Civil Revision No.2568 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.2568 of 2011(O&M) Date of Decision: May 2, 2011 Assistant Estate Officer, U.T., Sector 17, Chandigarh .....Petitioner v. Preetkamal Singh and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Dinesh Arora, Advocate for the petitioner. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.10297-CII of 2011 Application is allowed subject to all just exceptions. Civil Revision No.2568 of 2011 The present revision petition has been filed under Articles 226 and 227 of the Constitution of India for setting aside order passed by learned Civil Judge, Senior Division, U.T., Chandigarh, vide which defence of petitioner-defendant was ordered to be struck off on account of non-filing of written statement. 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. Facts relevant for the decision of present revision petition are that respondent no.1-plaintiff filed the present suit for declaration against petitioner and respondents no.2 and 3 alleging that he was entitled for booth in Rehri Market, Sector 46, Chandigarh, against hand cart licence No.409/A with a prayer that one booth out of 132 booths be not alienated during pendency of the suit. Notice of the suit was given to defendants. Government pleader appeared for all the defendants on 3.3.2008, when case Civil Revision No.2568 of 2011(O&M) -2- was adjourned for filing of written statement by learned trial Court to 3.4.2008. However, on 3.4.2008 written statement was not filed and on request of petitioner-defendant, case was adjourned to 10.4.2008. On 10.4.2008 as well, written statement was not filed and on the request of petitioner-defendant, case was adjourned to 17.4.2008. On 17.4.2008 also the same story was repeated and however, on the request of counsel for the petitioner-defendant, case was adjourned for the said purpose for 25.4.2008 subject to payment of Rs.100/- as cost. On 25.4.2008 again the same request was made and even the previous cost was not made and, however, learned trial Court granted another opportunity for the said purpose to petitioner-defendant and adjourned the case to 27.5.2008. On 27.5.2008 as well, written statement and reply to the stay application not filed and the case was adjourned for 28.7.2008 for the said purpose subject to payment of Rs.200/- as cost. However, as Court was on leave on 28.7.2008, the case was adjourned to 28.10.2008. As 28.10.2008 was declared holiday hence, the case was adjourned to 5.11.2008. Even on 5.11.2008, written statement was not filed and hence, the following order was passed by learned trial Court: “ Today case was fixed for filing written statement subject to payment of cost. However, neither cost has been paid nor written statement has been filed. Perusal of the file shows that defendant has availed several opportunities but has failed to file written statement and hence, defence of defendant stands struck off. Now to come up on 19.2.2009 for plaintiff's evidence.” Thereafter, the case was adjourned for evidence of plaintiff. An application was filed for setting aside the said order dated 5.11.2008, after more than six months of the passing of the said order, i.e., on 7.5.2009, which was also dismissed by learned trial Court vide order dated 26.8.2010. Petitioner-defendant took another about six months in filing the present revision petition challenging the said orders. Ground taken in the application for setting aside the order striking off the defence of petitioner-defendant before learned trial Court is that due to rush of work in the office and due to involvement of the different departments of petitioner-defendant, written statement could not be Civil Revision No.2568 of 2011(O&M) -3- filed within time. The application was contested by respondent-plaintiff on the ground that he is being unnecessarily harassed by petitioner-defendant. It has been contended by learned counsel for the petitioner- defendant that perusal of Order VIII Rule 1 of the Code of Civil Procedure (for short `the Code') is only directory and not mandatory, as held by Hon'ble Apex Court in Shaikh Salim Haji Abdul Khayumsab v. Kumar and others, 2005(4) RCR (Civil) 823 and hence, it is contended that one opportunity can be granted to the petitioner to file written statement. He has also placed reliance upon judgments rendered by different coordinate Benches of this Court in State of Haryana and others v. Karamjit Singh and others, 2006(2) RCR (Civil) 418, and Avtar Singh v. Avtar Singh, 2007(3) RCR (Civil) 495. It is pertinent to reproduce Order VIII Rule 1 of the Code, which reads as under:- “1.Written statement The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: PROVIDED that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.” A plain reading of this provision shows that defendant has to file written statement within 30 days from the date of service of summons, and however, if he fails to file the same within the said period of 30 days, Court can allow him to file the same on some other day, as may be specified by the Court, for reasons to be recorded in writing, however, the same shall not be more than 90 days from the date of service of summons. In the present case, written statement has not been filed even after expiry of 180 days from the first appearance in the Court and hence, defence of petitioner-defendant was ordered to be struck off by learned trial Court. In Shaikh Salim Haji Abdul Khayumsab's case (supra), upon which reliance has been placed by petitioner-defendant, though it has been Civil Revision No.2568 of 2011(O&M) -4- held by Hon'ble Apex Court that Order VIII Rule 1 of the Code is directory in nature, however, in that case date was already granted by learned trial Court for filing written statement, though the same was beyond 90 days and hence, in those facts, it was observed that a party cannot be made to suffer if the Court has committed a mistake, if for the sake of arguments it is held that Court had mistakenly granted time. Each case is to be decided on the basis of its own peculiar facts. The facts of present case are that petitioner-defendant has taken the Court as granted. Hence, it is a case of misuse of the process of the Court. Despite several opportunities granted by learned trial Court for filing written statement and despite imposing cost twice neither the cost was paid, nor the written statement was filed even after expiry of 180 days. Hence, the Court was having no other alternative but to order for striking off the defence of petitioner-defendant. If plea of petitioner-defendant is accepted, the provision of Order VIII Rule 1 of the Code would become meaningless. The said provision cannot be permitted to be taken off the record altogether. It is correct that provision is directory in nature, however, petitioner- defendant was required to show sufficient cause and extraordinary circumstances, as to why written statement could not be filed within stipulated period of 90 days. As already stated above, only plea taken by petitioner-defendant is that due to rush of work in the department, written statement could not be filed. It has further been contended that though written statement was ready, however, the same could not be filed due to negligence of the official of the department. It may be mentioned here that though defence of petitioner- defendant was ordered to be struck off by learned trial Court vide order dated 5.11.2008, however, application for recalling the said order was filed before learned trial Court after about six months of the same, i.e. on 7.5.2009. The said application was also dismissed by learned trial Court on 26.8.2010. However, even the present revision petition has been filed after about six months from passing of the said order. All these facts also show that most casual approach was adopted by petitioner-department in conducting the case in the Court. Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 Civil Revision No.2568 of 2011(O&M) -5- that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby. Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 2.5.2011 (Ram Chand Gupta) meenu Judge