C.R. No. 5245 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 5245 of 2011 Date of Decision: 4.10.2011 Randhir Singh ....Petitioner. Versus Darshan Singh and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Naresh Jain, Advocate for the petitioner. Mr. B.S. Sidhu, Advocate for the respondents. AJAY KUMAR MITTAL, J. 1. The defendant No.4-petitioner is aggrieved by the order dated 19.8.2011 passed by the trial court whereby his defence has been struck off for not filing the written statement. 2. Briefly stated, the facts necessary for adjudication of the present petition are that the plaintiff-respondent No.1 filed a suit for partition by way of metes and bounds of land measuring 8 kanal 8 marlas, Gair Mumkin Abadi, comprised in khewat No. 878 Khatauni No. 1465, khasra No. 1046(8-8) situated within the area of village Kotbhai-II, Tehsil Gidderbaha, District Sri Muktsar Sahin as per jamabandi for the year 2004-05 and put the plaintiff in separate possession of his share to the extent of 1/8 share. Upon notice of the suit, the defendant-petitioner appeared before the trial court on 19.5.2011 and sought time for filing C.R. No. 5245 of 2011 -2- written statement. On the said date remaining defendants, i.e. defendants No.1 to 3 and 5 to 7 were proceeded against exparte and the case was adjourned to 13.6.2011 on which date counsel for the petitioner had filed power of attorney. Thereafter, the case was adjourned to 30.7.2011 and on which date, the case was adjourned to 16.8.2011. On 16.8.2011, the petitioner was admitted in the hospital at Bathinda for back pain and was advised best rest for ten days and, therefore, was unable to appear in the court and file the written statement. The trial court vide order dated 19.8.2011 struck off the defence of the petitioner-defendant No.4 for not filing the written statement. Hence, the present revision petition. 3. I have heard learned counsel for the parties and have perused the record with their assistance. 4. Learned counsel for the petitioner submitted that the petitioner was served on 3.5.2011 and had appeared for the first time on 19.5.2011 and had sought time for filing the written statement. Accordingly, the case was adjourned to 13.6.2011 on which date, learned counsel for the petitioner had appeared and filed power of attorney and defendants No.1 to 3 and 5 to 7 were proceeded against exparte. Thereafter, the case was adjourned to 30.7.2011 on which date it was again adjourned to 19.8.2011. The reason for not filing the written statement on the said date was stated to be illness as the petitioner had back pain and was got admitted in the hospital in Bathinda and was advised bed rest for ten days. He, thus, submitted that there was sufficient cause for not filing the written statement and on 19.8.2011 the defence was struck off. He argued that the Apex Court in C.R. No. 5245 of 2011 -3- Zolba v. Keshao and others, 2008 (2) RCR (Civil) 869 had held the provisions of Order 8 Rule 1 of the Code of Civil Procedure (in short “the Code”) to be directory and in exceptional cases, the defendant could be allowed to file the written statement even beyond 90 days. He further submitted that in view of the facts narrated, the present case is covered by the aforesaid pronouncement and in the interest of justice one opportunity be granted to defendant No.4-petitioner to file the written statement and the plaintiff-respondent can be compensated by way of costs. 5. Opposing the prayer of the petitioner, learned counsel for the respondents submitted that the present case being a case in which the para meters laid down by the Apex Court in Zolba's case (supra) were not fulfilled and it could not be termed as exceptional case, as after availing three opportunities, defendant No.4-petitioner failed to file the written statement, no leniency ought to be shown by this Court and the trial court had rightly struck off the defence. Learned counsel had relied upon the order of this Court dated 18.7.2011 in C.R. No. 3320 of 2011 (Jaswinder Singh v. Makhan Singh and others) wherein the striking off defence by the trial court was upheld by this Court and the revision petition was dismissed. 6. I have given my thoughtful consideration to the respective submissions of learned counsel for the parties and find force in the submission of learned counsel for the petitioner. The Apex Court in Zolba's case (supra) while interpreting the provisions of Order 8 Rule 1 of the Code had held that the said provisions are not mandatory but directory and the court can allow the defendants to file the written C.R. No. 5245 of 2011 -4- statement if exceptional circumstances have been made out. The Apex Court had noticed as under:- “8. Therefore, following the principles laid down in the decision, as noted hereinabove, it would be open to the court to permit the appellant to file his written statement if exceptional circumstances have been made out. It cannot also be forgotten that in an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Therefore, unless compelled by express and specific language of the statute, the provisions of Order 8 Rule 1 of CPC or any procedural enactment should not be construed in a manner, which would leave the court helpless to meet extraordinary situations in the ends of justice.” 7. In the present case, the petitioner has explained the cause for not filing the written statement. Defendant No.4-petitioner appeared for the first time before the trial court on 19.5.2011 when the case was adjourned to 13.6.2011 for filing written statement. The next date in the case was fixed as 30.7.2011 when it was adjourned to 16.8.2011 on which date, the petitioner-defendant No.4 was admitted in the hospital at Bathinda. In such circumstances, it cannot be held that defendant No.4-petitioner was negligent in not filing the written statement. 8. Adverting to order of this Court in Jaswinder Singh's case (supra), in view of the following factual matrix noticed therein the same does not advance the cause of the respondent-plaintiff:- C.R. No. 5245 of 2011 -5- “A perusal of the zimni orders passed by the learned trial Court shows that the petitioner along with defendant/respondent Nos.4 & 5 were served on 25.3.2010 and they put in appearance through their counsel on 8.4.2010 and the case was adjourned for filing of written statement/power of attorney on their behalf while issuing notices again to defendant/ respondent Nos.2 & 3 for 25.5.2010. On 25.5.2010, the position remained the same as neither any power of attorney/written statement was filed on behalf of petitioner/defendant Nos.1, 4 & 5 nor defendant/ respondent Nos.2 & 3 were served and the case was adjourned to 16.9.2010. On 16.9.2010 also, position remained the same except that defendant/ respondent No.2 appeared in person and the matter was adjourned to 11.10.2010. On 11.10.2010 also, circumstances did not change except that one Sh. G.S. Mann, Advocate filed fresh power of attorney on behalf of petitioner-defendant No.1 and the case was adjourned to 10.12.2010 for the purpose already fixed. On 10.12.2010, position went from bad to worse as none appeared for defendant/respondent No.2 and as such she was proceeded ex parte but so far as the petitioner-defendant No.1 and defendant/ respondent Nos.4 & 5 are concerned, the position remained the same and consequently, their defence C.R. No. 5245 of 2011 -6- was struck off.” 9. In view of the above, the present revision petition is allowed and the order dated 19.8.2011 striking of the defence of defendant No.4-petitioner is set aside. In the interest of justice, one opportunity is granted to defendant No.4-petitioner to file written statement subject to payment of Rs.5000/- as costs to the plaintiff-respondent. It is, however, made clear that if on the date of hearing to be fixed by the trial court, the written statement is not filed or the costs are not paid, the revision petition shall be deemed to have been dismissed. October 4, 2011 (AJAY KUMAR MITTAL) gbs JUDGE