C.R. No.6129 of 2006 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.6129 of 2006 (O&M) Date of Decision: 17.08.2009 Ramesh Kumar .....Petitioner Versus Karam Chand ...Respondent Present: None for the petitioner. Mr. Sudeep Mahajan, Advocate for the respondent. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest? No -.- K. KANNAN J. (ORAL) 1. The revision is against the order rejecting an application for recalling an order by the terms of which the defence was struck off. The defendant had not filed the written statement within 90 days and the Court below observed that in view of the amended provisions of the Civil Procedure Code, unless definite reasons had been set forth, the Court shall not allow the written statement to be filed. The trial Court relied on decisions of Hon'ble Supreme Court to hold that the Court shall give effect to the statutory mandate and went on to dismiss the petition. 2. The contention raised in the grounds of civil revision is that the defendant had moved an application under Order 7 Rule 11 CPC for rejection of the plaint and that he was under the impression that if C.R. No.6129 of 2006 (O&M) -2- such an application was not disposed of, he need not to file the written statement. While examining the issue that there was proper cause for delay, it has to be seen from the context of how a party understood the legal consequence of the pendency of an application for rejection of a plaint. Indeed even a decision cited before the trial Court namely Saleem Bhai and others Vs. State of Maharashtra and others (2003) 1 SCC 557 referred to a case where the trial Court's direction to file a written statement even without deciding an application under Order 7 Rule 11 CPC was held to be bad. If the case must be considered only in the light of the above pronouncement, the Trial Court ought to have allowed the application and taken up the application under Order 7 Rule 11 CPC for disposal. 3. Learned counsel appearing for the respondents refers me to the decisions of the Hon'ble Supreme Court in Rani Kusum Vs. Kanchan Devi and others (2005) 6 SCC 705 and Zolba Vs. Keshao and others 2008 (3) Civil Court Cases 081 (S.C.) wherein it held that although the provision relating to filing of written statement within 90 days was not mandatory, the Court shall invariably see whether the reasoning had been adequately given. The departure from rule shall be an exception. In my view, it was one of those exceptional circumstances where the Court could not have gone on to reject the plea of the defendant if only it had applied even the judgment of the Hon'ble Supreme Court in Saleem Bhai's case referred to above. The suit is for setting aside the sale in relation to immovable property and in my view, the case would require an adjudication on merits by taking rival contentions of parties. If there had been a delay, that was C.R. No.6129 of 2006 (O&M) -3- explained by the defendant in a manner which was not wholly irrelevant. I am told that even the application under Order 7 Rule 11 has not been disposed of yet. The order of the Court below is set aside and the civil revision is allowed. 4. The defendant shall file the written statement and also pay costs of Rs.5,000/- to the plaintiff on or before 07.09.2009. The conditions appertain both to the filing of written statement and to the payment of costs and default of any one would result in the order of the court already passed to remain. On due compliance, the Court shall proceed in accordance with law. The Court is also directed to dispose of the application under Order 7 Rule 11 in a time bound manner and disposed it of preferably before 25.09.2009 before taking up the case for trial. 5. The civil revision is allowed in above terms. (K. KANNAN) JUDGE August 17, 2009 Pankaj*