Punjab-Haryana High Court
Som Nath And Ors vs Kimti Lal on 21 October, 2024
Author: Vikas Suri
Bench: Vikas Suri
Neutral Citation No:=2024:PHHC:137671
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
124
CR-6051-2024 (O&M)
Date of Decision: 21.10.2024
Som Nath and others
...Petitioners
Versus
Kimti Lal
...Respondent
CORAM: HON'BLE MR. JUSTICE VIKAS SURI
Present:- Mr. Rajesh Duhan, Advocate,
for the petitioners.
*****
VIKAS SURI, J.
1. This revision petition preferred by the petitioner-defendants
under Article 227 of the Constitution of India assails order dated 02.09.2024,
whereby the defence of defendant Nos.1 to 5 has been struck off by Court
order for having failed to file written statement despite the opportunities
having been afforded.
2. The facts in brief are that the petitioners are arrayed as
defendants in a suit for permanent injunction restraining them from
interfering in the peaceful possession of the plaintiff-respondent over two
shops situated within lal dora of village Ahar, Tehsil Israna, District
Panipat, i.e. the suit property.
3. Learned counsel for the petitioners submits that the defence of
the petitioners has been struck off even before the outer period stipulated
under Order 8 Rule 1 CPC has lapsed. The petitioners seek only one
1 of 4
Neutral Citation No:=2024:PHHC:137671
CR-6051-2024 (O&M) -2-
opportunity for filing their written statement.
4. Heard learned counsel for the petitioners and perused the case
file with his able assistance.
5. Perusal of the paper book shows that notice of the suit filed by
the respondent-plaintiff was issued vide order dated 06.06.2024 for
11.06.2024. The defendants put in appearance through counsel on the said
hearing and the matter was adjourned to 24.07.2024 for filing written
statement. On the said date, the proceedings were deferred to 21.08.2024,
which were further adjourned to 02.09.2024. Vide orders dated 24.07.2024
and 21.08.2024, last opportunity for filing written statement was provided.
Having failed to file the written statement in terms of the aforesaid orders,
vide impugned order dated 02.09.2024, defence of defendant Nos.1 to 5 was
struck off by Court order. It was further ordered that the defendant-
petitioners would be precluded from filing written statement and the
proceedings were adjourned for evidence of the plaintiff. As per the zimni
orders produced in Court by learned counsel for the petitioners, no evidence
has been led by the plaintiff as yet and the matter is pending for 19.12.2024.
6. No doubt, the provisions of Order 8 Rule 1 CPC are ordinarily
to be adhered to but the trial Court could have permitted one more
opportunity to file the written statement, keeping in view that a drastic order
of striking off the defence was being passed even before expiry of maximum
period stipulated under Order 8 Rule 1 CPC.
7. It is noteable that the provisions contained in Order 8 Rule 1
2 of 4
Neutral Citation No:=2024:PHHC:137671
CR-6051-2024 (O&M) -3-
CPC have been held to be directory in nature by the Apex Court in Salem
Bar Association vs. Union of India, (2005) 6 SCC 344. It is well settled
that the Court should not be too harsh to strike off the defence of the
defendants at very early stage. The rules of procedure are the handmaids of
justice and cannot be allowed to defeat substantial justice between the
parties.
8. It has also been held in the case of Bharat Kalra vs. Raj
Krishan Chhabra, 2022 SCC OnLine SC 613, while relying upon the
earlier judgment in Kailash vs. Nanko and others, (2005) 4 SCC 480, that
the provision of Order 8 Rule 1 CPC is not mandatory and the delay in filing
of the written statement could very well be compensated with costs but
denying the benefit of filing the written statement is unreasonable.
9. In view the law settled by the Apex Court and in order to do
complete justice between the parties, the defendant-petitioners are liable to
be granted one more opportunity to file their written statement, failing which
they would suffer irreparable loss that in turn would result in miscarriage of
justice. It is well settled that for complete adjudication between the parties
and to balance the scales of inconvenience, it is expedient that there is a
contested trial, instead of one side being handicapped on account of striking
off the defence.
10. In the totality of circumstances and peculiar facts of the present
case, the instant petition is being disposed of without issuing notice to the
respondents, to avoid any further delay in the proceedings as well as
3 of 4
Neutral Citation No:=2024:PHHC:137671
CR-6051-2024 (O&M) -4-
additional expenses that the plaintiff-respondents would have to incur to
defend the present proceedings.
11. Accordingly, the impugned order dated 02.09.2024 is set aside
and the instant revision petition is disposed of by granting one opportunity to
the defendant-petitioners to file their written statement on or before the date
already fixed before the trial Court. It is, however, made clear that in the
event of default by the petitioners in filing the written statement/reply to stay
application, no further opportunity is liable to be granted for the said purpose
and their defence shall be deemed to be struck off.
12. This revision petition is disposed of in the aforesaid terms.
13. Pending applications, if any, also stand disposed of.
( VIKAS SURI )
October 21, 2024 JUDGE
harish
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
4 of 4
