FAO No. M-240 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No. 19819-CII of 2008 and FAO No. M-240 of 2008 Date of decision: 19.08.2009 Smt. Rekha @ Rakhwinder Kaur ....Appellant Versus Gagandeep ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: -Mr. Surinder Garg, Advocate, for the appellant. Mr. Deepak Gupta, Advocate, for the respondent. ***** VINOD K. SHARMA, J (ORAL) This appeal is directed against the judgment and decree dated 19.8.2008 passed by the learned Civil Judge (Senior Division) (exercising delegated powers of the District Judge), Faridkot, vide which the petition filed by the respondent-husband under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights, stands decreed. The respondent-husband filed a petition on 14.9.2007, seeking restitution of conjugal rights on the plea that the appellant-wife had withdrawn from the society of the respondent-husband without any reasonable cause. It was the case of the respondent-husband, that the parties were married on 17.4.2006, but no child was born out of the wedlock. The ex parte decree was passed, as the defence of the appellant-wife was ordered to be struck off, for not filing the written statement within 90 days. The order dated 20.3.2008, vide which the FAO No. M-240 of 2008 (O&M) -2- defence of the appellant was ordered to be struck off reads as under: - “Written reply not filed. Period prescribed under Order 8 Rule 11 CPC has expired. No request has received to extend time to file written reply. Hence, defence of the respondent is struck off. Now to come up on 14.05.08 for the evidence of the petitioner. PF/DM/list of witness be filed with one week.” The learned counsel for the appellant contends, that the order striking off the defence cannot be sustained, as the learned trial Court treated the provisions of Order 8 Rule 11 of the Code of Civil Procedure to be mandatory, whereas the provisions are merely directory. There is force in this contention of the learned counsel for the appellant. The order of striking off the defence, therefore, cannot be sustained. In view of the fact, that the order striking off the defence was not passed in accordance with law and is not sustainable in law, subsequent proceedings also cannot be sustained. The appeal is allowed, judgment and decree passed by the learned Court below is set aside and the appellant-wife is granted one last opportunity to file the written statement within 15 days of appearance before the learned trial Court. Parties through their counsel are directed to appear before the learned trial Court on 15.9.2009. Appeal allowed. (Vinod K. Sharma) Judge August 19, 2009 R.S.