Balbir Singh And Ors vs Surinder Kaur And Ors
2022 Latest Caselaw 17424 P&H

                           251

                                 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                CHANDIGARH

                                                                        CR-2696-2022 (O&M)
                                                                        Date of Decision : 21.12.2022


                           Balbir Singh and Others                                         ....Petitioners

                                                             VERSUS

                           Surinder Kaur and Others                                      ....Respondents


                           CORAM : HON'BLE MRS. JUSTICE ALKA SARIN


                           Present :    Mr. Rahul Arora, Advocate, for
                                        Mr. Nitish Garg, Advocate for the petitioners.

                                        Mr. Prashant Bansal, Advocate for respondent No.1.
                                                               -.-

                           ALKA SARIN, J.

The present revision petition has been filed under Article 227

of the Constitution of India challenging the order dated 13.08.2020 whereby

the defence of the petitioners has been struck off for not filing the written

statement.

Learned counsel for the petitioners would contend that the

petitioners had put in appearance on 10.07.2020 for the first time and on

13.08.2020 their defence was struck off. Learned counsel would contend

that firstly during the said period various restrictions were in place due to

the Pandemic Covid-19 and further proviso of Order 8 Rule 1 of the Code

of Civil Procedure, 1908 provides a period of 90 days for filing of the

written statement which has also further been held to be directory in nature

and not mandatory.

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Learned counsel for the respondent No.1 contends that written

statement was not filed and hence the order has correctly been passed.

Heard.

The impugned order in the present case has been passed within a

period of 33 days of the defendants having put in appearance.

Order 8 Rule 1 of the Code of Civil Procedure reads as under :

1. Written statement : The defendant shall within

thirty days from the date of service of summons on him,

present a written statement of his defence:

Provided that where the defendant fails to file the

written statement within the said period of thirty days,

he shall be allowed to file the same on such other day,

as may be specified by the Court, for reasons to be

recorded in writing, but which shall not be later than

ninety days from the date of service of summons."

Hon'ble Supreme Court in the case of Desh Raj vs. Balkishan

(D) through proposed LR Ms. Rohini [(2020) RCR (Civil) 807] has held

as under :

"ANALYSIS & CONCLUSION

11. At the outset, it must be noted that the Commercial

Courts Act, 2015 through Section 16 has amended the

CPC in its application to commercial disputes to

provide as follows:

"16. Amendments to the Code of Civil Procedure, TRIPTI SAINI 2022.12.22 10:21 I attest to the accuracy and 1908 in its application to commercial disputes - (1) integrity of this document Chandigarh CR-2696-2022 (O&M) -3-

The provisions of the Code of Civil Procedure,

1908 (5 of 1908) shall, in their application to any

suit in respect of a commercial dispute of a

Specified Value, stand amended in the manner as

specified in the Schedule.

(2) The Commercial Division and Commercial

Court shall follow the provisions of the Code of

Civil Procedure, 1908 (5 of 1908), as amended by

this Act, in the trial of a suit in respect of a

commercial dispute of a specified value.

(3) Where any provision of any Rule of the

jurisdictional High Court or any amendment to the

Code of Civil Procedure, 1908, by the State

Government is in conflict with the provisions of the

Code of Civil Procedure, 1908 (5 of 1908), as

amended by this Act, the provisions of the Code of

Civil Procedure as amended by this Act shall

prevail."

12. Hence, it is clear that post coming into force of the

aforesaid Act, there are two regimes of civil procedure.

Whereas commercial disputes [as defined under Section

2(c) of the Commercial Courts Act, 2015] are governed

by the CPC as amended by Section 16 of the said Act;

all other noncommercial disputes fall within the ambit

of the unamended (or original) provisions of CPC.

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13. The judgment of Oku Tech (supra) relied upon the

learned Single Judge is no doubt good law, as recently

upheld by this Court in SCG Contracts India Pvt. Ltd. v.

KS Chamankar Infrastructure Pvt. Ltd., AIR 2019 SC

2691, but its ratio concerning the mandatory nature of

the timeline prescribed for filing of written statement

and the lack of discretion with Courts to condone any

delay is applicable only to commercial disputes, as the

judgment was undoubtedly rendered in the context of a

commercial dispute qua the amended Order VIII Rule 1

CPC.

14. As regard the timeline for filing of written

statement in a non-commercial dispute, the observations

of this Court in a catena of decisions, most recently in

Atcom Technologies Ltd. v. Y.A. Chunawala and Co.,

(2018) 6 SCC 639 holds the field. Unamended Order

VIII Rule I, CPC continues to be directory and does not

do away with the inherent discretion of Courts to

condone certain delays."

Thereafter in the case of Bharat Kalra Vs. Raj Kishan

Chabra [2022 SCC OnLine SC 613] also it has been held that the

provision of Order 8 Rule 1 of CPC is not mandatory relying upon the

judgment of the Supreme Court in Kailash V. Nankhu & Ors. [(2005) 4

SCC 480]. The Supreme Court further held that proviso of Order 8 Rule 1

in the case of non-commercial is directory in nature and not mandatory. In TRIPTI SAINI 2022.12.22 10:21 I attest to the accuracy and integrity of this document Chandigarh CR-2696-2022 (O&M) -5-

the present case even the period of 90 days has not lapsed.

In view of the above, the impugned order dated 13.08.2020

cannot be sustained and the same is accordingly set aside. The defendant-

petitioners are permitted to file their written statement on the next date of

hearing fixed before the Trial Court.

The revision petition is accordingly allowed. Pending

application, if any, also stand disposed off.

                           December 21, 2022                                   (ALKA SARIN)
                           tripti                                                 JUDGE

NOTE : Whether speaking/non-speaking : Speaking Whether reportable : YES/NO

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