Amratpal Singh vs Gurpreet Singh
2024 Latest Caselaw 6989 P&H

Punjab-Haryana High Court

Amratpal Singh vs Gurpreet Singh on 3 April, 2024

                                          Neutral Citation No:=2024:PHHC:044867
CR-681-2024 (O&M)                         1                            2024:PHHC:044867




             IN THE HIGH COURT OF PUNJAB AND HARYANA
                          AT CHANDIGARH

      136                                              CR-681-2024 (O&M)
                                                       Decided on: 03.04.2024

      Amratpal Singh

                                                                     ...Petitioner

                                                  Versus

      Gurpreet Singh
                                                                    ...Respondent



      CORAM: HON'BLE MRS JUSTICE RITU TAGORE

      Present:       Mr. Prateek Pandit, Advocate
                    for the petitioner.

                                 ****

      RITU TAGORE, J.

1. Learned counsel for the petitioner has placed on record copies

of zimini orders passed by learned trial Court, same are taken on record,

subject to just exceptions. It is submitted by learned counsel that the case

before learned trial Court is now fixed for 19.04.2024 for plaintiff's

evidence.

2. Challenge in the present revision is to the order dated

01.07.2023 (Annexure P-5) passed by Additional Civil Judge (Senior

Division) Kapurthala in a Civil Suit No.626 of 2022 titled as 'Gurpreet

Singh Vs. Amratpal Singh', whereby the evidence of the petitioner

(defendant before the learned trial Court), has been closed by Court order.

3. Considering the limited prayer made in this revision, notice to

respondent is dispensed with at this stage.

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4. Learned counsel submits that the respondent (plaintiff before

the trial Court) instituted a civil suit for possession by way of specific

performance of agreement to sell dated 11.08.2020 in respect of land

measuring 2 kanals 0 marla as detailed in the head note of the plaint

(Annexure P-1) with consequential relief of permanent injunction against the

petitioner on various averments taken in the plaint.

5. It is stated that upon receiving the notice of the case, petitioner

appeared in the aforementioned suit through his counsel and thereafter

moved an application (Annexure P-2) for production of documents to enable

him to file his written statement. Thereupon documents were supplied to the

petitioner on 09.03.2023 and the case was posted for filing of written

statement by the petitioner. It is stated that petitioner, being an agriculturist,

remained occupied with harvesting season and consequently could not file

his written statement. As a result, the case was adjourned for filing the

written statement for 26.04.2023, 22.05.2023 and on 01.07.2023 his defence

was struck off vide impugned order (Annexure P-5). Learned counsel

submits that the petitioner also moved an application (Annexure P-6) for

recalling the order 01.07.2023 and sought permission to tender his written

statement (Annexure P-7), but his request was not accepted on the plea of

non-maintainability of the application, and it was returned.

6. While referring to various zimini orders, learned counsel

contends that due to the reasons explained above it is explicit that petitioner

has not willfully abstained from filing his written statement. It is urged by

the learned counsel that the valuable right of the petitioner has been

foreclosed by the learned trial Court, preventing him from defending his

case. This order has harshly affected the petitioner, who has been unable to

file a response, causing serious prejudice to his rights in the suit. The learned

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counsel urges to give the petitioner one opportunity to tender his written

statement and requests to allow the petition.

7. I have heard learned counsel for the petitioner and have gone

through the paper book.

8. After perusing the paper book and the documents placed on

record, it is evident that respondent filed a civil suit for possession by way of

specific performance against the petitioner. Various zimini orders on record

also indicate that the petitioner filed an application (Annexure P-2),

requesting the respondent to provide a copy of an agreement to sell, and on

09.03.2023, copies of documents were supplied to the petitioner. Subsequent

zimni orders also reveal that learned trial Court afforded four opportunities

to the petitioner to present his written statement, but petitioner failed to

submit the same, resulting in striking off the defence of the petitioner vide

the impugned order. Furthermore, an application (Annexure P-6) indicate

that the petitioner made a request before the learned trial Court for recalling

of the order dated 01.07.2023, and requested to allow him to place on record

his written statement (Annexure P-7). However, according to the averment

of the petitioner, the learned trial Court did not entertain the application,

deeming it not maintainable, and returned it.

9. A careful reading of the language of Order 8 Rule 1, CPC

reveals that it imposes an obligation on the defendant to file the written

statement within 30 days from the date of service of summons on him/her or

within the extended time falling within 90 days. The provision does not deal

with the power of the Court and also does not explicitly take away or restrict

the Court's authority to accept a written statement filed beyond the time as

provided for. Further, nature of provision contained in Order 8 Rule 1, CPC

is procedural. It is not a part of the substantive law. However, the object

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behind amending the Order 8 Rule 1, CPC in its current form is to expedite

hearing rather than hinder or scuttle the same. The process of justice may be

accelerated and hastened, but the fundamental fairness, which is a basic

element of justice, cannot be permitted to be compromised.

10. It is trite that all rules of procedure are the handmaid of justice.

In an adversarial system, no party should ordinary be denied the opportunity

of participating in the process of justice dispensation. In Bharat Kalra Vs.

Raj Kishan Chabra, 2022 (3) Apex Court Judgements (SC) 598 Hon'ble

the Supreme Court observed as under:-

"3. Admittedly, the suit for injunction filed by the plaintiff is not the one which is governed by the Commercial Court Acts, 2015. Therefore, the time limit for filing of the written statement under Order VIII Rule 1 of CPC is not mandatory in view of the judgment of this Court reported as 'Kailash v. Nankhu and others', (2005) 4 SCC 480.

4. In view of aforesaid judgment, we find that the delay in filing of the written statement could very well be compensated with costs but denying the benefit of filing of the written statement is unreasonable.

5. Consequently, we allow the present appeal. The order passed by the High Court is set aside. The written statement already field is taken on record.''

11. Although the facts of the case suggest that petitioner has been

somewhat negligent in not prosecuting the litigation with due diligence, but

still, it cannot be suggested that delay has been caused by the petitioner for

any malevolent reasons. It is well established that the Court should adopt a

liberal approach and rights of the parties should be adjudicated on the merits

of the controversy, rather, thwarting the same on rigid technicalities.

Furthermore, the counsel on behalf of the petitioner undertakes to file the

written statement in one opportunity. Keeping that in view, it is also an

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establish practice of law that delay can always be rectified or atoned by

imposing costs.

12. In circumstances to do complete justice between the parties, I

believe that one effective opportunity be granted to the petitioner to file his

written statement before the learned trial Court enabling him to put forth his

stand before the Court to the assertions and allegations raised by the

respondent (plaintiff) against him. Accordingly, impugned order dated

01.07.2023 (Annexure P-5) is set aside, subject to payment of Rs.20,000/- as

costs by the petitioner to respondent (plaintiff).

13. Petitioner is directed to appear before the learned trial Court on

the due date of hearing as fixed by the Court and tender the costs and file his

written statement.

14. It is made clear that in case of default, this order shall stand

vacated automatically.

15. Respondent if not satisfied with this order, may move an

application for recalling of this order within 30 days.

16. Pending applications, if any, also stands disposed of

accordingly.

                                                      (RITU TAGORE)
                                                          JUDGE
      03.04.2024
      Rimpal
                     Whether speaking/reasoned        :      Yes/No
                     Whether reportable               :      Yes/No




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