Civil Revision No.3564 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.3564 of 2011(O&M) Date of Decision: May 27, 2011 Harwinder Singh and others .....Petitioners v. Amritpal Singh and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.I.S.Brar, Advocate for the petitioners. ..... RAM CHAND GUPTA, J.(Oral) The present revision petition has been filed under Article 227 of the Constitution of India against order dated 23.4.2011, Annexure P1, passed by learned Civil Judge, Senior Division, Faridkot, vide which defence of petitioners was ordered to be struck off for want of filing of written statement within stipulated period. I have heard learned counsel for the petitioners 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 a suit for declaration was filed by respondents no.1 and 2-plaintiffs against present petitioners and respondents no.3 to 6 to the effect that they are owners in possession of the land in dispute and that subsequent sale deed executed by Harwinder Singh and Gurdev Kaur in favour of Narinder Kaur, respondent no.3-defendant no.4 and subsequent mutation are null and void. Civil Revision No.3564 of 2011(O&M) -2- Notice was issued for 25.8.2010. On 25.8.2010, service was effected upon defendants including present petitioners and, however, as none appeared on behalf of defendants no.1 and 2, hence, they were proceeded ex parte and the case was adjourned for 28.8.2010. On 28.8.2010 an application for setting aside ex parte proceedings against defendants no.1 and 2 was filed. Ex parte proceedings were set aside and the case was adjourned for 31.8.2010 for filing written statement. On 31.8.2010, Wakalatnama was filed on behalf of defendant no.3 and, however, written statement was not filed by any of the defendants. Learned trial Court in the interest of justice, adjourned the case for 28.9.2010 for filing written statement. On 28.9.2010, written statement was not filed by any of the defendants and the case was adjourned for 12.10.2010 for filing written statement, on which date as well the same was not filed and the case was adjourned for 16.11.2010. On 16.11.2010 also written statement was not filed and the case was adjourned for 8.12.2010. On 8.12.2010 also written statement was not filed by any of the defendants and last opportunity was granted to them by learned trial Court for filing the same for 19.1.2011. On 19.1.2011 instead of filing written statement, an application was filed by defendant no.4 directing plaintiffs to place on record the original alleged Will and the case was adjourned for 2.2.2011 for that purpose. On that date, Will was produced and the same was also placed on record and the case was adjourned for filing written statement by all the defendants for 9.2.2011. However, on 9.2.2011 as well no written statement was filed by any of the defendants and the case was again adjourned for 9.3.2011, on which date also when no written statement was filed, last opportunity was granted to defendants by learned trial Court for filing the same for Civil Revision No.3564 of 2011(O&M) -3- 6.4.2011. Again on 6.4.2011, written statement was not filed and another adjournment was requested, which was granted subject to payment of `200/- as cost for 23.4.2011. On 23.4.2011, written statement was filed by defendant no.4 only and no written statement was filed by petitioners- defendants no.1 to 3 and hence, learned trial Court was having no alternative but to pass the impugned order striking off the defence of present petitioners-defendants, which reads as under:- “Written statement/reply by defendant no.4 filed. Copy supplied to opposite party. Written statement/reply by defendant no.1 to 3 again not filed despite grant of last opportunity. Cost also not paid. I have gone through the case file. Defendant no.3 has put his appearance in this Court on 25.8.2010 and defendants no.1 and 2 have put their appearance on 28.8.2010 and since then 11 effective opportunities have already been granted to them for filing written statement/reply, but they did not file the same without any sufficient cause. As such, defence of defendants no.1 to 3 is hereby struck of. To come up on 3.6.2011 for consideration on stay application and for settlement of issues.” It has been contended by learned counsel for the petitioners- defendants that provision of Order VIII Rule 1 of the Code of Civil Procedure (for short `the Code') is directory in nature and that written statement can be permitted to be filed if sufficient cause is shown even after expiry of period of 90 days. It is further contended that petitioners- defendants belong to State of Rajasthan and due to communication gap the Civil Revision No.3564 of 2011(O&M) -4- written statement could not be filed within time. It is also contended that written statement also could not be filed for want of production of the Will. 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 bare perusal of aforementioned provision shows that written statement is to be filed within 30 days from the date of service of summons on defendant and if he fails to file written statement within said period of 30 days, he can be allowed to file the same on such other day, as may be specified by the Court for reasons to be recorded in writing and, however, the same shall not be later than 90 days from the date of service of summons. Even if the said provision is taken to be directory in nature, as has been argued by learned counsel for the petitioners, sufficient cause has to be shown by petitioners-defendants for not filing the written statement within 30 days and then within 90 days. Rather, in this case, written statement was not filed by petitioners-defendants for a period of about 8 months after their first appearance. So far as argument of learned counsel for the petitioners- defendants that Will was not produced is concerned, there was no request Civil Revision No.3564 of 2011(O&M) -5- on behalf of the petitioners-defendants directing respondents-plaintiffs to file original Will and, however, request was made on behalf of defendant no.4 for that purpose and that too after availing sufficient opportunities for filing written statement and after period of 90 days has already expired and, however, Will was produced by respondents-plaintiffs on the very next date of hearing and even despite that written statement was not filed by present petitioners-defendants and respondent no.3-defendant no.4, after availing so many opportunities. On 23.4.2011, when the impugned order was passed, written statement was filed by respondent no.3-defendant no.4 only and, however, written statement was not filed by petitioners-defendants, nor cost was paid. Even if provision of Order VIII Rule 1 of the Code is taken to be directory, it cannot be said that the same can be completely taken off the record. Petitioners have to make out a sufficient cause for permitting them to file written statement, after expiry of eight months from their first appearance. However, in this case no such case is made out by the petitioners-defendants. 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. Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others, 2003(6) SCC 675 : AIR 2003 SC 3044: 2004(1) RCR (Civil) 147, that supervisory jurisdiction is not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors for drawing inference like a Court of Civil Revision No.3564 of 2011(O&M) -6- appeal. It has been observed as under:- “Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.” Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 27.5.2011 (Ram Chand Gupta) meenu Judge