CR No.52 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.52 of 2011 Date of decision: 21.1.2011 Rajinder Narang ...Petitioner Versus Nand Kishore and others ...Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Lokesh Sinhal, Advocate for the petitioner None for the respondents. *** Ram Chand Gupta, J.(Oral) The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 30.11.2010 (Annexure P-4) passed by learned Civil Judge (Jr.Divn.), Faridabad, vide which defence of petitioner -defendant No.1 was ordered to be struck of. 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. Brief facts relevant for the decision of the present revision petition are that suit for permanent and mandatory injunction was filed by respondent No.1-plaintiff against petitioner -defendant No.1 and defendant Nos.2 and 3. The suit was filed on 18.8.2010. Notice was issued to the defendants for 20.8.2010. Counsel for defendants No.1 and 2 appeared on CR No.52 of 2011 2 that day, however, defendant No.3 did not appear. The case was adjourned for filing written statement by defendant Nos. 1 and 2 for 15.9.2010 while ordering for ex-parte proceedings against defendant No.3. An ad-interim injunction was also passed in favour of the respondents-plaintiff against the present petitioner-defendant No.1 by restraining him from raising any sort of construction over the Gali shown in the site plan. It has been contended by learned counsel for the petitioner- defendant No.1 that written statement could not be filed on behalf of petitioner-defendant No.1 within 90 days as the petitioner was ailing and he could not contact his counsel. It is further contended that moreover, the conduct of petitioner -defendant No.1 was not intentional in delaying the filing of written statement, as even stay was operating against him. It is further contended that moreover, even written statement was not filed on behalf of defendant No.3 on that day and rather ex-parte order against defendant No.3 was set aside and the case was adjourned for filing written statement by defendant No.3. It is further contended that even on the adjourned date i.e. 20.12.2010 written statement and reply to the injunction application were not filed by defendant No.3 and the case was further adjourned for that purpose for 27.1.2011. Counsel for the petitioner further contended that petitioner- defendant No.1 would file written statement on 27.1.2011, the date already fixed for filing written statement by defendant No.3. It is also contended that the rule that the written statement is to be filed within 30 days or 90 days of appearance is directory in nature and not mandatory. CR No.52 of 2011 3 There is force in the arguments of learned counsel for the petitioner-defendant No.1. Moreover, nobody has appeared on behalf of respondent No.1-plaintiff to oppose the present revision petition despite service. The case is still at the stage of filing of written statement by respondent No.3-defendant No.3. Hence, no prejudice would be caused to respondent -plaintiff if an opportunity is granted to the petitioner-defendant No.1 to file written statement. So far as the fact that due to action of the petitioner, delay has taken place in disposal of the suit, the opposite party can be compensated by way of cost. Hence, in view of these facts, the present petition is accepted. The impugned order is set aside. Learned trial Court is directed to grant one opportunity to file written statement by petitioner-defendant No.1 on 27.1.2011, the date already fixed. However, the petitioner is burdened with cost of Rs.1000/-. January 21, 2011 (RAM CHAND GUPTA) gsv JUDGE