Devraj Son Of Shri Nathu Ram vs In The Instant Case
2021 Latest Caselaw 5647 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 9th DAY OF DECEMBER 2021

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BEFORE

HON'BLE MS. JUSTICE JYOTSNA REWAL DUA CIVIL MISC. PETITION MAIN (ORIGINAL) No. 248 OF 2016

Between:-

DEVRAJ SON OF SHRI NATHU RAM,

RESIDENT OF VILLAGE JATEHAR BIHAL, PHATI KATRAIN, KOTHI BARAGARH, TEHSIL AND DISTRICT KULLU, HIMACHAL PRADESH.

.....PETITIONER

(BY SH. MAAN SINGH, ADVOCATE)

AND

AMAR SINGH (SINCE DECEASED) THROUGH

HIS LEGAL REPRESENTATIVES:

KALPANA NEGI D/O LATE SH. AMAR CHAND,

R/O VILLAGE JATEHAR BIHAL, PHATI KATRAIN, KOTHI BARAGARH, TEHSIL & DISTT. KULLU,

HIMACHAL PRADESH, MINOR THROUGH HER STEP SISTER SAPNA SHAH D/O ASHOK SHAH, R/O VILLAGE CHICHOGA JHADAG, PO MANALI,

TEHSIL MANALI, DISTT. KULLU (H.P) 175131

.....RESPONDENT (SH. ANIRUDH SHARMA, ADVOCATE)

__________________________________________________

This petition coming on for admission this day,

the Court passed the following:

ADMISSION AFTER NOTICE

Petitioner was the defendant before the learned

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trial Court. Vide order dated 17.05.2016, his defence was struck

off, as he had not filed the written statement within a period of

90 days. Aggrieved, he has assailed this order in the present

petition instituted under Article 227 of the Constitution of India.

2. Civil suit was filed by the respondent/plaintiff for

declaration to the effect that certain registered sale deeds were

got executed from him by fraud played upon him by the

defendant with the connivance of scribe and marginal witnesses.

That sale deeds were without any value consideration and

therefore were required to be declared as null and void. Notice

in the plaint was issued to the defendant on 15.10.2015,

returnable for 09.12.2015. The defendant appeared before the

learned trial Court on 09.12.2015. The matter was next fixed for

filing of the written statement on 09.03.2016. Written statement

was not filed on 09.03.2016. Learned trial Court observed in the

order dated 09.03.2016 that the written statement be filed as per

provisions of Order 8 Rule 1 of the Code of Civil Procedure. The

matter thereafter was stated to have been listed before the

learned trial Court on 08.04.2016. However, the Court did not

assemble on that date. The case was next listed on 17.05.2016

when following order was passed:-

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"Written statement not filed. It is to be noted that defendant

had put appearance before this Court on 09.12.2015 and since then more than 90 days have elapsed, hence, the defence of the defendant is struck off.

Now be listed for evidence of the plaintiff on 06.10.2016."

Aggrieved against the aforesaid order, the

defendant has preferred the instant petition.

3. I have heard learned counsel for the parties and

gone through the documents on record.

4. Learned counsel for the petitioner submitted that

the petitioner had to appear in LLB term examination during the

months of May and June 2016 conducted by the University of

Delhi. The roll number issued to the petitioner and the date

sheet of LLB term examination have been placed on record.

Learned counsel further submitted that on account of appearing

in the LLB examination during the months of May & June 2016,

the petitioner could not file his written statement before the

learned trial Court.

Learned counsel for the respondent has argued

that the defendant had appeared before the learned trial Court

on 09.12.2015. He had ample time prior to holding of LLB term

examination in May/June 2016 to file the written statement.

That no explanation has been accorded by the defendant

(petitioner herein) for having not filed the written statement

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within the period prescribed in terms of Order 8 Rule 1 CPC.

5. Hon'ble Apex Court in Civil Appeal No.6304/2021,

titled as Shoraj Singh Vs. Charan Singh, held that the

provisions of Order 8 Rule 1 of the Code of Civil Procedure are

mandatory in the Commercial Courts under the Commercial

Courts Act, 2015. The Hon'ble Apex Court further observed as

under:-

"We find that the High Court has completely misdirected

itself not to take written statement on record in view of the

judgments of this Court in 'Kailash Vs. Nankhu & Ors,

reported in (2005) 4 SCC 480 and 'Salem Advocate Bar

Association, Tamil Nadu vs. Union of India;, reported in

(2005) 6 SCC 344 wherein it was held that the period of 90

days for filing of written statement is directory."

In (2020) 2 SCC 708, titled as Desh Raj Vs

Balkishan, the Hon'ble Apex Court held that the time line for

filing of written statement in a non-commerical dispute is

governed by a catena of previous decisions, most recently in

Atcom Technologies Ltd. Vs. Y.A. Chunawal & Co.(2018) 6

SCC 639. The unamended Order 8 Rule 1 CPC continues to be

directory and does not do away with the inherent discretion of

Courts to condone certain delays.

In the instant case, the petitioner/defendant has

not moved any application before the learned trial Court seeking

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extension of time to file the written statement. Be that as it may.

In terms of impugned order dated 17.05.2016, learned trial Court

has straightway struck off the defence of the petitioner on the

ground that more than 90 days had elapsed from the date of his

first appearance before the Court on 09.12.2015. Pursuant to an

interim order passed in the instant petition on 01.07.2016 further

proceedings in the civil suit have been stayed. Therefore,

looking into the nature of controversy, the facts and

circumstances of the case and without adverting to the merits of

the matter, in the interest of justice, this petition is disposed of by

granting liberty to the petitioner to approach the learned trial

Court seeking extension of time to file the written statement,

subject to cost of Rs.5000/- to be paid by the petitioner to the

respondent on the first date of listing of the matter before the

learned trial Court. Impugned order dated 17.05.2016 passed by

the learned Civil Judge (Senior Division) Kullu in Case

No.115/15 titled Amar Chand Vs. Devraj is set aside. Parties

through their learned counsel are directed to appear before the

learned trial Court on 21.12.2021

In case the application as aforesaid alongwith the

written statement is presented by the petitioner before the

learned trial Court on the aforesaid date, the same shall be

considered and decided by the learned trial Court, in

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accordance with law. However, it is made clear that the period

spent in pursuing the instant petition shall not be taken into

consideration.

The instant petition is disposed of with the above

directions, so also the pending miscellaneous applications, if

any.

Jyotsna Rewal Dua Judge

December 09, 2021 (rohit)