IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CR NO.267/2009
Date of Decision:19.1.2009.
Nathu Deen
..........Petitioner.
Versus
Bashir Ahmed and another.
..........Respondents.
CORAM: HON'BLE MR.JUSTICE JASWANT SINGH.
Present:- Mr.Ravinder Malik(Ravi)Advocate for the petitioner-
defendant no.2.
JASWANT SINGH,J(Oral).
The petitioner-defendant no.2 has filed this revision petition
under Article 227 of the Constitution of India, praying for setting aside the
order dated 3.4.2008 (Annexure P/1) passed by learned Additional Civil
Judge (Senior Division) Jagadhari, whereby the defence of petitioner has
been ordered to be struck off on account of non-filing of written statement
and reply to the application under Order 39 Rules 1 and 2 CPC, despite last
opportunity.
It is stated that respondent no.1 Bashir Ahmed filed a suit for
possession regarding land measuring 8 marlas, allegedly in unauthorised
possession of the petitioner-defendant no.2 and for recovery of mesne
profits with a further prayer for decree of permanent injunction. The suit
was filed on 12.12.2007. It is submitted that petitioner-defendant no.2 is
semi-literate aged man of about 70 years and was unable to produce/submit
the necessary documents, required for preparation of the written statement,
CR NO.267/2009 2
to his counsel. It is further pointed out that after the passing of the
impugned order dated 3.4.2008 (Annexure P/1), petitioner-defendant no.2
had filed an application for recalling of the said order which has been
dismissed vide order dated 5.12.2008 (Annexure P/2), as being not
maintainable.
Learned counsel prays for one last opportunity for filing written
statement, which is necessary for effective adjudication of the case.
As far as the period prescribed for filing the written statement
under Order 8 Rule 1 CPC, is concerned, the same has been held to be
directory in nature by judgments of Hon’ble the Supreme Court in Kailash
v.Nankhu and others, 2005(2)RCR (Civil) 379(SC); and M/s R.N.Jadi &
Brothers and others v. Subhashchandra, 2007(2)RCR (Rent) 139: 2007
(3) RCR (Civil) 588: 2007(4) Raj 125 (SC); and of this Court in
Surender Singh and others v. Omvati and others, 2005(3) RCR (Civil)
786 (P&H). It has further been held therein that in exceptional
circumstances the Court can extend time beyond 90 days for filing written
statement so as to avoid injustice being caused to the parties.
After hearing the learned counsel for the petitioner-defendant
no.2, and keeping in view the aforesaid legal principles, this Court is of the
view that the petitioner on account of reasons given in the petition for non-
filing of the written statement in time, is entitled to one more opportunity
for filing his written statement, as no prejudice is going to be caused to the
other side. Furthermore, keeping in view the nature of the suit, filing of the
written statement would be essential for proper adjudication. It is quite
CR NO.267/2009 3
settled that the approach of the Courts should be towards final and
substantial determination of disputes between the parties, rather than
defeating them on hypertechnical grounds.
Accordingly, this revision petition is allowed. The impugned
order dated 3.4.2008 (Annexure P/1) is set aside and the petitioner-
defendant no.1 is granted one last opportunity to file his written statement,
within 15 days from the date of receipt of a copy of this order, subject to
payment of Rs.3000/- as costs to be paid to the plaintiff-respondent no.1.
19.1.2009. (Jaswant Singh) joshi Judge