C.R. No.5849 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No.5849 of 2010 Date of Decision: 14.9.2010 Saroj Sharma and another ……Petitioners VERSUS Balbir Kumar and others ……Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. Gagandeep Toni, Advocate for the petitioners. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. (ORAL) C.R. No.5849 of 2010 -2- 1. Present petition is filed challenging the order dated 23.3.2010, whereby application moved by the defendants (petitioners herein) for recalling the order dated 13.6.2007 and seeking permission to submit the written statement on record was declined. 2. Brief facts of the present case are that on 13.6.2007, learned trial Court has struck off the defence of defen- dants No.2 to 4 and refused to grant time to the defen- dants/petitioners to file written statement having observed that despite of last opportunity written statement has not been filed nor cost of Rs.500/- imposed on the last date was paid. Thereafter, defendants/petitioners moved an application dated 4.3.2010 for recalling/setting aside the order dated 13.6.2007 and seeking permission to place on record the written statement. Learned trial Court vide the impugned order dated 23.3.2010 dismissed the appli- cation by observing that present application is against the provisions of Code of Civil Procedure and Civil Court has got no jurisdiction to entertain such type of application. Feeling aggrieved from the impugned order dated 23.3.2010, defendants/petitioners have approached this Court under Article 227 of the Constitution invoking su- pervisory jurisdiction of this Court. C.R. No.5849 of 2010 -3- 3. The finding of the learned trial Court that there is no provi- sion in the Code of Civil Procedure for recalling/setting aside its own order is not only illegal but is also against the settled principle of law. Section 151 C.P.C. gives in- herent power to every Civil Court to pass appropriate or- der in the interest of justice. In the opinion of this Court, Section 151 C.P.C. can be pressed in service to recall its earlier orders if Court thinks fit to recall its earlier order in the interest of justice. In the matter of Jet Ply Wood Pri- vate Limited and another vs. Madhukar Nowlakha and others reported in 2006(2) Civil Court Cases 54 (S.C.), the Hon’ble Apex Court has held that Court can exercise its power under Section 151 C.P.C. to recall the order by which suit was dismissed as withdrawn. 4. Learned Counsel for the petitioners/defendants states that petitioners/defendants are ready and willing to pay entire costs and to file written statement, hence, delay in making payment of costs and filing of written statement must be condoned and time must be extended to make payment of the costs and to file written statement, so that defendants/petitioners may place their written statement on the record. C.R. No.5849 of 2010 -4- 5. In the present case, defence of the defendants/petitioners was directed to be struck off on 13.6.2007 for two rea- sons, first defendants have not paid costs of Rs.500/- as imposed on them for seeking time to file written state- ment, second, written statement has not been filed de- spite of last opportunity. Application for recalling the or- der dated 13.6.2007 was moved on 4.3.2010 nearly after 33 months. No reason or sufficient ground is shown therein, as to why application could not be moved at the earliest. 6. The Hon’ble Apex Court in the case of Kailash vs. Nanhku and others reported in (2005) 4 Supreme Court Cases 480 in paragraph Nos.42, 43 and 44 has held as under:- “42. Ordinarily, the time schedule prescribed by Order 8 Rule 1 has to be honoured. The defendant should be vigilant. No sooner 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 ap- pearance 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 ex- C.R. No.5849 of 2010 -5- pired. 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 cir- cumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the inter- est of justice, and grave injustice would be occasioned if the time was not extended. 43. A prayer seeking time beyond 90 days for filing the written statement ought to be made in writing. In its judicial discretion exer- cised on well-settled parameters, the Court may indeed put the defendants on terms in- cluding imposition of compensatory costs and may also insist on an affidavit, medical certifi- cate or other documentary evidence (depend- ing on the facts and circumstances of a given case) being annexed with the application seeking extension of time so as to convince the Court that the prayer was founded on grounds which do exist. 44. The extension of time shall be only by way of exception and for reasons to be re- corded in writing, howsoever brief they may be, by the Court. In no case, shall the defen- C.R. No.5849 of 2010 -6- dant 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 im- pose 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.” 7. This Court is of the view that defendant is to show excep- tional circumstances seeking time to file written statement after ex- piry of 90 days as prescribed under Order 8 Rule 1 C.P.C. In the present case, defendants have miserably failed to assign any reason justifying the period of 33 months for not moving the application seeking permission to file written statement. 8. Learned Counsel for the petitioners/defendants further states that in the suit, evidence of the plaintiff has been recorded. This seems to be another valid reason to decline the permission to the defendants to file their written statement after the closure of plaintiffs’ evidence. 9. Petition is devoid of merit, hence, is dismissed. ( ALOK SINGH ) 14th September, 2010 JUDGE ashish