Civil Revision No.2019 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.2019 of 2011(O&M) Date of Decision: April 5, 2011 Bhagwan Singh .....Petitioner v. Kulwant Kaur .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.G.K.Saini, Advocate for the petitioner. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.7789-CII of 2011 Application is allowed subject to all just exceptions. Civil Revision No.2019 of 2011 The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 14.1.2011, Annexure P9, vide which defence of the petitioner-defendant has been struck off on the ground of his failure to file the 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 a civil suit for possession by way of specific performance of sale agreement dated 25.11.2003 was filed by respondent-plaintiff against present petitioner-defendant on 30.10.2009. Notice of suit was given to present petitioner-defendant. Notice was duly served upon petitioner- defendant and he appeared through his counsel on 1.6.2010 and the case was adjourned to 14.6.2010 for filing written statement. However, the written statement was not filed and date was requested and hence the matter was adjourned to 3.8.2010. From 3.8.2010, the case was adjourned to Civil Revision No.2019 of 2011(O&M) -2- 3.9.2010 and last opportunity was granted to the petitioner to file the written statement. However, written statement was not filed despite last opportunity, rather an application was filed on behalf of the petitioner for directing the plaintiff to file original agreement and the case was adjourned to 5.10.2010 for that purpose and on 5.10.2010, original agreement was produced by respondent-plaintiff. Another opportunity was given to petitioner to file written statement for 10.11.2010. On 10.11.2010 as well, written statement was not filed and the case was adjourned to 15.12.2010 subject to payment of `100/- as cost. On 15.12.2010 as well, written statement was not filed and, however, on the request of counsel for the petitioner-defendant, case was adjourned to 14.1.2011 for filing written statement. When on 14.1.2011 as well, the written statement was not filed, the following order was passed by learned trial Court striking off the defence of petitioner-defendant:- “ Written statement not filed by the defendants. Perusal of file reveals that more than 90 days have been elapsed, but the defendant has failed to file his written statement. As such there is no justification in further adjourning the case for the said purpose. So the defence of defendant is struck off. Now to come up on 15.2.2011 for the evidence of plaintiff.” It has been contended by learned counsel for the petitioner- defendant that written statement could not be filed by the petitioner as his son went missing in the month of June 2010 and hence, there was sufficient cause for the petitioner-defendant for not filing the written statement within stipulated period. It is further contended that Order VIII Rule 1 of the Code of Civil Procedure (hereinafter to be referred as `the Code') is only a directory and not mandatory in nature. 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 Civil Revision No.2019 of 2011(O&M) -3- 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 the aforementioned provision shows that defendant is required to file written statement of his defence within thirty days from the date of service of summons on him and further as per proviso, defendant can be permitted to file the written statement within 90 days for reasons to be recorded in writing by the Court, if sufficient cause is shown by the defendant and, however, written statement shall not be filed later than 90 days from the date of service of summons. In the present case written statement has not been filed even after expiry of a period of more than seven months by the petitioner- defendant. Petitioner-defendant appeared on 1.6.2010. It shows that petitioner-defendant must have received summons much earlier than 1.6.2010. Several opportunities were granted to him by learned trial Court to file written statement. On the request of petitioner-defendant, even respondent-plaintiff was directed to produce original agreement to sell, which was produced by the plaintiff. The plea now being taken by the petitioner that he could not file the written statement as his son went missing was not taken before learned trial Court and no such application was filed. However, even if the plea is accepted that the son of petitioner went missing in the month of June 2010, written statement was not filed even after expiry of six months from the said date. Further even if argument of learned counsel for the petitioner- defendant is accepted that provision is directory in nature and not mandatory, it cannot be said that the aforementioned provision has become totally redundant. Petitioner-defendant is required to make out a sufficient cause before learned trial Court for not filing the written statement within a stipulated period, as per Order VIII Rule 1 of the Code. However, in this case what to talk of sufficient cause, no cause is made out for not filing the written statement for about seven months from the date of first appearance. 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 Civil Revision No.2019 of 2011(O&M) -4- 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 2004(1) RCR (Civil) 147 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, the present revision petition is, hereby, dismissed being devoid of any merit. 5.4.2011 (Ram Chand Gupta) meenu Judge