Civil Revision No. 6438 of 2011 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 6438 of 2011 (O&M) Date of Decision: October 20th, 2011 Makhan Singh .... Petitioner Versus Gurbachan Singh .... Respondent CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present Mr. A.K.Kalsy, Advocate, for the petitioner. VIJENDER SINGH MALIK, J. This is a revision petition brought by the defendant – Makhan Singh under the provisions of Article 227 of the Constitution of India for setting aside the order dated 7.6.2011 (Annexure P1) passed by learned Civil Judge (Junior Division), Ludhiana, vide which application for striking off the defence of the petitioner has been allowed. Gurbachan Singh, respondent had filed a suit for declaration against the petitioner to the effect that he is exclusive owner in possession by way of adverse possession of the property measuring 6 marlas, properly detailed in the headnote of the plaint. He had also sought the relief of permanent injunction, which is not necessary to be mentioned here. The defendant appeared in the suit on 30.3.2010 and Civil Revision No. 6438 of 2011 2 .. written statement on his behalf was filed on 3.8.2010 beyond the period of 90 days from the date of first appearance of the defendant in the court in this case. In the meanwhile, the plaintiff filed an application for striking off his defence on the ground that the defendant failed to file the written statement within 90 days. The application was opposed by the petitioner claiming that written statement has already been filed. Noticing that the defendant appeared in the suit for the first time on 30.3.2010 and has filed written statement only on 3.8.2010, beyond 90 days of the first date, learned trial court ordered written statement to be not read in favour of the defendant because although it is filed, it was filed more than 90 days after his first appearance in the suit. Learned trial court adjourned the case for evidence of the plaintiff. Aggrieved by the aforesaid order, the present revision petition has been filed. I have heard Mr.A.K.Kalsy, learned counsel for the petitioner and have gone through the record. Though, the defence of the defendant-petitioner has not been struck off in clear terms, yet by observing that the written statement cannot be read in favour of the defendant, learned trial court has made it clear that it is not to be taken on record and in this way, the defence of the defendant has been struck off. Under Order VIII Rule 1 of Code of Civil Procedure, a defendant is to present a written statement of his defence within 30 days from the Civil Revision No. 6438 of 2011 3 .. date of service of summons on him. However, this period of 30 days can be enlarged to 90 days under the proviso appended to it. A question would now arise as to whether under all circumstances, the written statement filed beyond 90 days is to be rejected or kept out of consideration. The court has got ample power to enlarge time beyond 90 days by condoning the delay. The court should have taken care of the time being taken by the defendant in filing the written statement and should have decided the question when the written statement was not filed within 90 days. It is a case where the written statement has already been filed without the court making any order qua the same at that time. After filing the written statement, the court has decided on the application of the plaintiff filed with the prayer for striking off the defence. In these circumstances, the interest of justice required the written statement, which was already on the file, to be taken into consideration and the order that it will not be taken into consideration made by learned trial court is not justified. Consequently, the revision petition is allowed and the impugned order is set aside. Learned trial court is directed to take the written statement into consideration and proceed with the trial of the suit from that stage. (VIJENDER SINGH MALIK) JUDGE October 20th, 2011 som