Punjab-Haryana High Court
Raj Kumar And Anr vs Kapil Dev And Others on 9 August, 2023
Neutral Citation No:=2023:PHHC:103435
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
332
CR-3684-2023
Decided on : 09.08.2023
Raj Kumar And Another
. . . Petitioner(s)
Versus
Kapil Dev And Others
. . . Respondent(s)
CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH
Present: Mr. Subhash Kumar, Advocate
for the petitioners.
Mr. Varun Goyal, Advocate
for respondent No.1.
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SANJAY VASHISTH, J. (Oral)
1. Present revision petition has been preferred by the petitioners
(defendant Nos.3 and 4) - Raj Kumar son of Jang Bahadur and Saneha wife
of Raj Kumar, challenging the impugned order dated 19.12.2022, passed by
learned Civil Judge (Jr. Divn.), Jalandhar, whereby, rights of the
petitioners/defendant Nos.3 and 4 has been ordered to be struck off, on
account of non-filing of the written statement within the prescribed time.
2. Mr. Varun Goyal Advocate, puts in appearance on behalf of
respondent No.1, and files his power of attorney in Court today, which is
taken on record, subject to all just exceptions. Office to tag the same at ap-
propriate place in case file.
3. After hearing the petitioners (defendant Nos.3 and 4), at the
time of preliminary hearing on 03.07.2023, following order was passed:-
"1. Present revision petition has been preferred by the pe-
titioners under Article 227 of the Constitution of India,
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for setting aside the impugned zimni order dated
19.12.2022 (P-6), passed in Civil Suit No. 1953 of 2022,
titled as, 'Kapil Dev Vs. Jang Bahadur etc.", pending in
the Court of Ld. Civil Judge (Jr. Divn.), Jalandhar, whe-
reby, the Ld. Trial Court has struck off the right of the pe-
titioners (i.e. defendants No.3 & 4 in the suit) of filing
written statement in the suit.
2. Counsel for the petitioners submits that suit was filed
on 05 July, 2022, and the parties to the lis are closely re-
lated to each other. For the reason of not filing the writ-
ten statement, defense of the petitioners (defendants No.3
& 4 in the suit) has been struck-off vide impugned order
dated 19.12.2022 (P-6).
Further submits that if one opportunity is granted to the
petitioners, subject to the payment of some costs, as di-
rected by the Court, the required written statement would
be filed, so that suit can be decided on its merits.
3. Notice of motion for 09.08.2023."
4. It is also informed to the Court that the proceedings in the suit
are at initial stage as the issues are yet to be framed.
5. Learned counsel for the petitioners also relies upon the order
dated 20.05.2022, passed by the Coordinate Bench of this Court in CR-
1660-2020, titled as, "Paro and others vs. Mahindo", wherein, in the
similar circumstances, to avoid miscarriage of justice, the order of striking
off defense was set-aside, and opportunity of filing of written statement was
granted.
6. It is always the endeavour of the Court to have complete set of
pleadings of all the respective parties so that rights of no one as party to the
suit, gets prejudiced.
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7. Even in the present case, plaintiff and the defendants are related
to each other and therefore, counsel for the respondents herein (defendant
Nos.1 and 2) also submits that subject to the payment of cost, petitioners
(defendants No.3 and 4) can be granted one last opportunity for the purpose
of filing of the written statement, if this Court considers it appropriate.
8. I have heard learned counsel for the parties and perused the re-
levant material on record.
9. Be that as it may, this Court has already taken note of the
necessity of the filing of written statement and completion of the pleadings
before the Court, more in the interest of imparting justice to the concerned
parties.
10. Besides above, for deciding the small issue raised in the present
petition, all the details are not required to be examined minutely. As per the
view point of this Court, it is always desirable for the Court to find out
solution by deciding the controversy after inviting response from all the
concerned parties. Court cannot function on the principle of technicalities or
in a specified mechanized manner. Therefore, it would always be fair to
impart justice after giving reasonable opportunity to all the parties to plead
their stand in writing in the shape of plaint, written statement and
replication. In fact, pleadings are required for the just and proper
adjudication of the case in the form of litigation before the Court.
11. From the referred judgment of Paro and others' (supra), this
Court has noticed the observation made therein, relevant part of which says
as under:
"The provisions of Order 8 Rule 1 of the CPC no doubt
are directory in nature, however, at the same time the Courts must
exercise their discretion to condone the delay, if any, in filing the
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written statement after exercising due circumspection and in case
there appears to be an attempt on the part of the defendant to engage
in dilatory tactics, the Courts should nip the same unhesitatingly.
Adverting to the case in hand, the petitioners were granted
four opportunities to file their written statement, however, they failed
to do so.
Be that as it may, if the petitioners are not granted one more
opportunity to file their written statement, they would suffer
irreparable loss which in turn would result in miscarriage of justice.
Therefore, for just and proper adjudication of the case, this Court
deems it appropriate to grant one last effective opportunity to the
petitioners to file their written statement.
In the wake of the above, without issuing notice to the
respondent, to avoid any further delay as well as expenses which she
shall have to incur to defend these proceedings, the impugned order
dated 21.11.2019, is set aside. The instant revision petition is
allowed in the following terms:-
1. The petitioners are granted one last effective
opportunity to file their written statement.
2. In the event of default by the petitioners, the case shall
not be adjourned any further for filing of their written
statement and consequently their defence shall be
deemed to be struck off.
3. This, however, shall be subject to payment of costs in
the sum of Rs.5,000/- to be paid to the respondent
which shall be a condition precedent."
12. Considering the circumstances in its totality and the compassion
shown by the respondents (plaintiff and defendant Nos.1 and 2), I hereby
deem it appropriate to set-aside the impugned order dated 19.12.2022 to
the extent of striking off the defense of defendants No.3 and 4
(petitioners herein). Accordingly, defendants No.3 and 4 (petitioners
herein) is granted one more effective opportunity for filing their written
statements, within three weeks from today, and then to re-frame the issues
afresh, if so required. However, it would be subject to the payment of
Rs.10,000/- as costs, which would be paid to the plaintiff (respondent
herein) before the Trial Court.
13. It is, however, made clear that if petitioners/defendant Nos.3
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and 4 fails to file their written statement on or before the next date of
hearing, fixed before the Trial Court, no further opportunity would be
granted to her for the said purpose.
Petition stands disposed of accordingly.
(SANJAY VASHISTH)
JUDGE
August 09, 2023
Lavisha
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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