CR No.336 of 2010 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on 13.7.2010. Radhey Sham and another --Petitioners vs. Sat Pal and others -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Vishal Gupta,Advocate,for the petitioners Mr.Mohnish Sharma,Advocate,for the respondents. Rakesh Kumar Jain, J, Plaintiffs have filed this revision petition against the order of Addl. Civil Judge (Senior Division), Amloh, dated 16.9.2010 by which an application filed by them for striking off defence of the defendants for not filing the written statement within 30 days as provided under Order 8 rule 1 of Code of Civil Procedure,1908 (for short,CPC) has been dismissed. Plaintiffs filed a suit for partition in which the defendants were allegedly served on 30.1.2006. They filed an application on 21.7.2006 for striking off defence of the defendants in not filing the written statement within 30 days much-less 90 days as provided under Order 8 Rule 1 of the CPC. The application was contested by the defendants by way of reply dated 23.8.2006 in which it was alleged that they have not adopted any CR No.336 of 2010 2 dilatory tactics by not filing the written statement because they had already filed an application under Order 7 Rule 11 of the CPC for rejection of plaint which was not decided. The trial Court, vide its impugned order, observed that the defendants were bonafidely pursing their application filed under Order 7 Rule 11 of CPC which was decided on the same date i.e. 16.9.2009 when the application filed by the plaintiffs for striking off defence of the defendants for not the filing the written statement within time as provided under Order 8 Rule 1 of the CPC was dismissed. Learned counsel for the plaintiffs/petitioners has vehemently argued that after the amendment in the CPC w.e.f. 1.7.2002, 30 day's time is provided to the defendants to file the written statement from the date of service of summons. However, there is an exception to file beyond that period in case the Court finds a sufficient reasons to be recorded in writing. He has submitted that there was no sufficient reason assigned by the defendants for not filing the written statement within the prescribed period, therefore, the impugned order suffers from material irregularity and illegality and deserves to be set aside. On the other hand, learned counsel for the defendants/respondents has submitted that the reason for not filing the written statement within the stipulated period was an application filed by the defendants under Order 7 Rule 11 of CPC for rejection of the plaint. It is submitted that in the case of success of the said application, there would have been no occasion for the defendants/respondents to file the written statement as the Court would have rejected the plaint filed by the plaintiffs. CR No.336 of 2010 3 I have heard learned counsel for the parties and perused the record with their assistance. Before referring to the rival contentions of the learned counsel for the parties, it would be relevant to refer to Order 7 Rule 11 and Order 8 Rule 1 of the CPC:- “ Order 7 Rule 11. Rejection of plaint . - The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; (b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule 9. Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.” CR No.336 of 2010 4 “ Order 8 Rule 1 CPC 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”. As per order 7 Rule 11 of CPC, the Court has the jurisdiction to reject the plaint on any one of the causes mentioned therein. Therefore, it is always open to the defendants, who had reason to believe that the plaint could be rejected on any of the grounds mentioned in Order 7 Rule 11 of the CPC, to file an application under the aforesaid provisions even before the filing of the written statement. Insofar as Order 8 Rule 1 of the CPC is concerned, it is no doubt true that the written statement has to be filed within 30 days from the date of service of summons but exception is provided in Order 8 Rule 1 of CPC that for a sufficient reason to be recorded in writing, the Court can permit filing of the written statement at a later date. In the case of M/s.Aditya Hotels (P) Ltd Vs. Bombay Swadeshi Stores Ltd and others 2007 (2) R.C.R (Civil) 858, the Apex Court has laid down parameter for extending the time granted under Order 8 Rule 1 of the CPC observing thus:- “Ordinarily, the time schedule prescribed by Order 8 Rule 1 has to be honoured. The defendant should be vigilant. No sooner CR No.336 of 2010 5 the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the Court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for the asking, more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order 8 Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended. The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the court. In no case, shall the defendant be permitted to seek extension of time when the court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel. The court may impose costs for dual purpose: (i)to deter the defendant from seeking any extension of time just for the asking and (ii)to compensate the plaintiff for the delay and inconvenience caused to him”. CR No.336 of 2010 6 In view thereof, the question arises as to whether in the present case, the Court below had found some sufficient reason while dismissing the application of the plaintiffs for striking off defence of the defendants due to non-compliance of Order 8 Rule 1 of CPC. In my view, pendency of the application filed under Order 7 Rule 11 of CPC at the instance of the defendants by itself is a sufficient ground for not filing the written statement because in the event of success of the said application, the plaint would have been rejected and in that circumstance, the defendant was not required to file his written statement. In the present case, since the application filed under Order 7 Rule 11 of CPC was pending and was not decided till the date when the application filed by the plaintiffs for striking off defence of the defendants was decided, therefore, in my view, there is no error in the order of the learned trial Court and as such the present revision petition is hereby dismissed. 13.7.2010 (Rakesh Kumar Jain) RR Judge