Vibhor Sharma Kaushal vs Raj Kapoor Kaushal And Ors
2022 Latest Caselaw 13863 P&H

                             IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                            255                                   CR No.5873 of 2018 (O&M)
                                                                  Reserved on : 28.10.2022
                                                                  Date of Decision: 01.11.2022


                            Vibhor Sharma Kaushal                                             ....Petitioner

                                                              VERSUS

                            Brig. Raj Kapoor Kaushal and Others                            ....Respondents

                            CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

                            Present :    Mr. Kanishk Arora, Advocate for the petitioner.

                                        Mr. Joginder Singh, Advocate for respondent nos.1 to 5.

                                        Mr. Ashutosh Verma, Advocate for
                                        Mr. Lokesh Sinhal, Advocate for respondent no.6.


                            ALKA SARIN, J.

The present revision petition under Article 227 of the

Constitution of India has been filed assailing the orders dated 04.07.2018

(Annexure P-1) and 31.07.2018 (Annexure P-2) passed by the Trial Court

permitting the defendant-respondent nos.1 to 5 to file their written statement

beyond the period of 90 days.

Learned counsel for the plaintiff-petitioner would contend that

the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908

(for short 'CPC') are mandatory in nature and hence, the written statement

could not have been allowed to be filed after the expiry of the period of 90

days. In support of his argument, learned counsel for the plaintiff-petitioner

has relied upon a judgment of the Bombay High Court in the case of

Prabhakar Madhavrao Mule vs. Bhagwan Mitharam Choudhari [2004

(5) BomCR 568].

JITENDER KUMAR 2022.11.01 11:27 I attest to the accuracy and integrity of this order/judgment.

Chandigarh
                             CR                                                                            -2-

Per contra learned counsel for the defendant-respondent nos.1

to 5 has relied upon judgments of the Hon'ble Supreme Court in the cases of

Shoraj Singh vs. Charan Singh [2021 (4) PLR 158]; Kailash vs. Nanhku

& Ors. [2005 (2) RCR (Civil) 379] and Bharat Kalra vs. Raj Kishan

Chabra [Civil Appeal No.3788 of 2022 arising out of SLP (C) No.63 of

2022 decided on 09.05.2022], to contend that the provisions of Order VIII

Rule 1 CPC are directory in nature and not mandatory and that the

provisions are mandatory only in case of Commercial Courts under the

Commercial Courts Act, 2015.

The brief facts relevant to the present lis are that the plaintiff-

petitioner filed a civil suit for declaration, partition and possession of shares

with consequential relief of rendition of accounts and mesne profits and

permanent injunction. The defendant-respondent nos.1 to 5 in the present

case are the father, uncles and aunts of the plaintiff-petitioner. Notice of the

suit was given to the defendant-respondent nos.1 to 5 who put in appearance

on 06.12.2017. Thereafter, the matter was adjourned on various dates. An

application under Order VII Rule 11 CPC was filed by the defendant-

respondent nos.1 to 5 as also applications were filed by the plaintiff-

petitioner under Order I Rule 10 CPC and under Order VIII Rule 10 CPC.

The case was thereafter again adjourned on various dates and vide the

impugned orders the defendant-respondent nos.1 to 5 were permitted to file

their written statement. The argument of learned counsel for the plaintiff-

petitioner that the provisions of Order VIII Rule 1 CPC are mandatory in

nature cannot be accepted in view of the law laid down by the Hon'ble

Supreme Court in the cases of Shoraj Singh (supra), Kailash (supra) and

Bharat Kalra (supra). It has repeatedly been held by the Hon'ble Supreme JITENDER KUMAR 2022.11.01 11:27 I attest to the accuracy and Court that the provisions of Order VIII Rule 1 CPC are mandatory only in integrity of this order/judgment.

Chandigarh
                             CR                                                                         -3-

the case of Commercial Courts under the Commercial Courts Act, 2015. No

doubt, the defendant-respondent nos.1 to 5 have been remiss in filing the

written statement, however, denying them the opportunity of filing the

written statement would be unreasonable. The Trial Court has exercised its

discretion while permitting the defendant-respondent nos.1 to 5 to file their

written statement and in view of the law laid down by the Hon'ble Supreme

Court holding that the provisions of Order VIII Rule 1 CPC are not

mandatory in nature, I do not find any ground to interfere with the impugned

orders passed by the Trial Court.

The present revision petition, which is devoid of any merit, is

accordingly dismissed. Pending applications, if any, also stand disposed off.

Dismissed.

                                                                                      ( ALKA SARIN )
                            01.11.2022                                                    JUDGE
                            jk

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

JITENDER KUMAR 2022.11.01 11:27 I attest to the accuracy and integrity of this order/judgment.

Chandigarh