Smt. Rekha @ Rakhwinder Kaur vs Gagandeep on 19 August, 2009

FAO No. M-240 of 2008 (O&M)
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       IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                       CHANDIGARH


                                         CM No. 19819-CII of 2008 and
                                         FAO No. M-240 of 2008
                                         Date of decision: 19.08.2009

Smt. Rekha @ Rakhwinder Kaur
                                                              ....Appellant

                    Versus

Gagandeep
                                                           ....Respondent


CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA

Present: -Mr. Surinder Garg, Advocate,
          for the appellant.

          Mr. Deepak Gupta, Advocate,
          for the respondent.

                    *****

VINOD K. SHARMA, J (ORAL)

This appeal is directed against the judgment and decree

dated 19.8.2008 passed by the learned Civil Judge (Senior Division)

(exercising delegated powers of the District Judge), Faridkot, vide which

the petition filed by the respondent-husband under Section 9 of the

Hindu Marriage Act, for restitution of conjugal rights, stands decreed.

The respondent-husband filed a petition on 14.9.2007,

seeking restitution of conjugal rights on the plea that the appellant-wife

had withdrawn from the society of the respondent-husband without any

reasonable cause.

It was the case of the respondent-husband, that the parties

were married on 17.4.2006, but no child was born out of the wedlock.

The ex parte decree was passed, as the defence of the

appellant-wife was ordered to be struck off, for not filing the written

statement within 90 days. The order dated 20.3.2008, vide which the
FAO No. M-240 of 2008 (O&M)
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defence of the appellant was ordered to be struck off reads as under: –

“Written reply not filed. Period prescribed under Order 8
Rule 11 CPC has expired. No request has received to
extend time to file written reply. Hence, defence of the
respondent is struck off. Now to come up on 14.05.08 for
the evidence of the petitioner. PF/DM/list of witness be
filed with one week.”

The learned counsel for the appellant contends, that the order

striking off the defence cannot be sustained, as the learned trial Court

treated the provisions of Order 8 Rule 11 of the Code of Civil Procedure

to be mandatory, whereas the provisions are merely directory.

There is force in this contention of the learned counsel for the

appellant. The order of striking off the defence, therefore, cannot be

sustained. In view of the fact, that the order striking off the defence was

not passed in accordance with law and is not sustainable in law,

subsequent proceedings also cannot be sustained.

The appeal is allowed, judgment and decree passed by the

learned Court below is set aside and the appellant-wife is granted one

last opportunity to file the written statement within 15 days of

appearance before the learned trial Court.

Parties through their counsel are directed to appear before

the learned trial Court on 15.9.2009.

Appeal allowed.

(Vinod K. Sharma)
Judge
August 19, 2009
R.S.