C.R.No.3320 of 2011 (O&M) #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.3320 of 2011 (O&M) Date of decision: 18.7.2011 Jaswinder Singh ….Petitioner Vs. Makhan Singh and others ….Respondents CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. B.S. Sidhu, Advocate for the petitioner. Jaswant Singh, J C.M.No.16760-CII of 2011 Application is allowed. Interim orders are taken on record. C.R.No.3320 of 2011 Defendant No.1-petitioner has filed the instant petition under Article 227 of the Constitution praying for setting aside the impugned order dated 10.12.2010 (P.1) passed by learned Additional Civil Judge (Sr. Division), Gidderbaha whereby the defence of the petitioner as well as defendant/respondent Nos.4 & 5 herein has been struck off due to non-filing of written statement. Brief facts of the case are that the plaintiff-respondent No.1 filed Civil Suit No.28-I dated 11.2.2010 for possession by way of partition by metes and bounds of land measuring 4 kanal, 7 marlas described in the head note of the plaint. Upon notice, defendant No.1-petitioner along with defendant/respondent Nos.4 & 5 put in appearance through counsel on C.R.No.3320 of 2011 (O&M) #2# 8.4.2010 but did not file written statement within the stipulated period, which led to passing of the impugned order dated 10.12.2010 thereby striking off their defence, hence the present petition. Learned counsel for the petitioner argues that the impugned orders passed by the learned trial Court is wholly erroneous and liable to be set aside on the premise that it is because of the fault of their counsel that written statement could not be filed and as such they should not suffer due to the lapse on the part of their counsel. It is further argued that defendant No.3 is yet to be served and in case, the impugned order is not set aside, the petitioner shall suffer a great prejudice. In support, learned counsel cites a judgment of this Court reported as Housing Board Haryana v. Suresh and others 2008(3) RCR (Civil) 865. After hearing learned counsel for the petitioner and perusing the paper book, this court does not find any merit in the petition and the same deserves dismissal. 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, C.R.No.3320 of 2011 (O&M) #3# 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 was struck off. The circumstances narrated above reveal that the present case is a typical example of civil suits, which are necessarily being prolonged and litigation is being used as a luxury. It is apparently clear that from the service of notice i.e 25.3.2010 till passing of the impugned order dated 10.12.2010, petitioner had been afforded five opportunities along with defendant/respondent Nos.4 & 5 to file the written statement but he took the matter casually resulting into passing of the impugned order. Judgment relied upon by learned counsel for the petitioner in Housing Board Haryana's case (supra) is distinguishable on facts and is not helpful to the petitioner due to the reason that in that case the defence of the petitioner was struck off on 92nd day and petitioner was a statutory Board created by the State where officers work with impersonal attitude and moreover it was the specific case that copy of plaint was not received alongwith the summon and reference in this regard can be made to para 6 of the said judgment. But in the present case, the factual situation is entirely different. No doubt, the Hon'ble Supreme Court has held that the provisions of Order 8 Rule 1 CPC are directory but a case is to be made out by the party for giving the reasons for non-filing of the written statement within C.R.No.3320 of 2011 (O&M) #4# the prescribed period and this is not to be taken as a routine matter after availing five opportunities over a period of more than eight months. The plea of the petitioner that they are suffering on the part of their counsel is not acceptable as it is very easy to blame the counsel for seeking the sympathy of the Court for prolonging the matter on one pretext or the other and such practice should be deprecated. The argument that defendant No.3 is yet to be served, in my opinion, can not be said to be the basis for not filing the written statement within the stipulated time under Order 8 Rule 1 CPC. Keeping in view the facts and circumstances discussed hereinabove, this Court finds no illegality or perversity in the impugned orders passed by the learned courts below warranting interference under Article 227 of the Constitution. Dismissed. July 18, 2011 ( JASWANT SINGH ) manoj JUDGE