Punjab-Haryana High Court
Kavita vs Pardeep Kumar And Another on 15 April, 2024
Author: Alka Sarin
Bench: Alka Sarin
Neutral Citation No:=2024:PHHC:050510
2024:PHHC:050510
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
128
CR-1662-2024 (O&M)
Date of decision: 15.04.2024
Kavita ... Petitioner(s)
Versus
Pardeep Kumar and Another ...Respondent(s)
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Deep Singh Saini, Advocate for the petitioner.
Ms. Amrita Nagpal, Advocate for respondent No.1.
ALKA SARIN, J. (ORAL)
1. Challenge in the present revision petition is to the impugned
order dated 13.12.2023 whereby the defense of the defendant No.2-
petitioner has been struck off due to non-filing of the written statement.
2. In the present case the plaintiff-respondent No.1 herein filed a
suit for possession by way of specific performance of conditional mortgage
dated 08.10.2008 directing the defendant No.1 i.e. Brij Bhushan to execute
and get registered the sale deed of his ½ share in part of House No.124/14,
measuring 86 Sq. yards i.e. 57'-6" x 13'-5" situated at Old Subzi Mandi,
Sanoli Road, Panipat vide registered sale deed dated 28.12.1988. The suit
came up for hearing for the first time on 09.08.2023 and was adjourned to
04.09.2023 for affixing proper court fee. On 04.09.2023 notice was issued to
the defendants for 18.09.2023. Vide order dated 18.09.2023 defendant No.1
was proceeded against ex parte and the matter was adjourned to 23.10.2023
for filing of the written statement by defendant No.2 i.e. petitioner herein.
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On 23.10.2023 written statement was not filed and last opportunity was
granted and the matter was adjourned to 29.11.2023. Vide order dated
29.11.2023, on an application filed by defendant No.1 for setting aside the
ex parte order, the ex parte order dated 18.09.2023 was set aside and
defendant No.1 was permitted to file his written statement. Since no written
statement was filed by the defendant No.2-petitioner the matter was
adjourned to 13.12.2023 for filing of the written statement by defendant
No.2- petitioner subject to last opportunity on payment of Rs.300/- as costs.
Vide the impugned order dated 13.12.2023 the defense of the defendant
No.2-petitioner was struck off for non-filing of the written statement.
3. Learned counsel for the defendant No.2-petitioner would
contend that given one opportunity the defendant No.2-petitioner would file
her written statement. He would further contend that even as per the
provisions of Order 8 Rule 1 CPC, 90 days are granted for filing of the
written statement and in the present case even that period of 90 days had not
expired when the defense of the petitioner was struck off. Learned counsel
for the defendant No.2-petitioner would further contend that given one
opportunity the defendant No.2-petitioner would file her written statement
on or before the next date of hearing i.e 26.04.2024.
4. Ms. Amrita Nagpal, Advocate has put in appearance on behalf
of plaintiff-respondent No.1, who is the contesting respondent, and has
contended that issues in the present case stand framed and that despite
numerous opportunities the defendant No.2-petitioner had failed to file her
written statement. It is further the contention that the witnesses of the
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plaintiff-respondent No.1 have tendered their evidence in examination-in-
chief.
5. I have heard the learned counsel for the parties.
6. In the present case, even before the expiry of 90 days, the
defense of the defendant No.2-petitioner was struck off. In the case of Desh
Raj vs. Balkishan (D) through proposed LR Ms. Rohini [(2020) RCR
(Civil) 807], Hon'ble Supreme Court 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,
1908 in its application to commercial disputes - (1)
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.
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(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.
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
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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."
7. Order 8 Rule 1 CPC 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 falls 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."
8. The defendant is required to file the written statement within 30
days of the service of summons, however, the time may be extended upto 90
days from the date of service of summons. In the present case, the period of
90 days had not expired when the impugned order was passed.
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9. In view of the judgment of the Supreme Court wherein it has
been held that the provisions under Order 8 Rule 1 CPC are directory in
nature and not mandatory in the case of a non-commercial suit, the
impugned order cannot be sustained and the same is accordingly set aside.
The defendant No.2-petitioner shall file her written statement on or before
the next date of hearing before the Trial Court i.e. 26.04.2024. It is made
clear that in case the written statement is not filed on 26.04.2024, the present
petition shall be deemed to having been dismissed.
10. The present petition stands allowed accordingly. Pending
miscellaneous applications, if any, also stand disposed off.
15.04.2024 (ALKA SARIN)
Ankur JUDGE
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
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