The High Court dismissed a civil revision petition challenging an order striking off the petitioner-defendant's defence for failure to file a written statement within the 90-day limit. The Court held that the explanation of changing lawyers was insufficient and the trial court acted within its powers.
Revision petition dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Civil Revision No.602 of 2011 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Civil Revision No.602 of 2011 (O&M) Date of Decision: January 28, 2011
Manpreet Kaur
.....Petitioner
v.
Surya Kant and another
.....Respondents
CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr.A.S.Kakkar, Advocate for the petitioner.
.....
RAM CHAND GUPTA, J.(Oral)
The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 7.1.2011, Annexure P1, passed by learned Additional Civil Judge, Senior Division, Faridkot, vide which defence of petitioner-defendant no.1 was ordered to be struck off.
I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court.
Brief facts relevant for the decision of present revision petition are that respondent no.1-plaintiff filed a suit for possession by way of specific performance of agreement to sell dated 14.10.2005. Notice of the suit was ordered to be given to defendants for 9.12.2009. Appearance on behalf of petitioner-defendant no.1 was put up by her counsel before learned trial Court after service on 27.9.2010 and on request date was given to file written statement for 2.12.2010. On 2.12.2010, written statement was not filed. However, the other counsel appeared on that day on behalf of petitioner-defendant no.1 and requested another date for filing written statement and in the interest of justice, another date was given by learned trial Court for filing written statement, making it clear that the same would be last and final opportunity. However, on the adjourned date, i.e., 7.1.2011, neither written statement was filed nor any sufficient cause was
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Civil Revision No.602 of 2011 (O&M)
shown and hence, learned trial Court has passed the impugned order, which reads as under:-
“ In the suit in hand, defendant no.1 had appeared through counsel on 27.9.2010 and was directed to file written statement, but again on 2.12.2010, written statement was not filed. Today also written statement is not filed. As per law, written statement was to be filed within 30 days. From 27.9.2010, maximum limit of 90 days was already over on 27.12.2010 itself. Therefore, defence of defendants is struck off, because no reasonable explanation is furnished for not filing the written statement within time, nor further reason for demanding more time is put forward nor written statement is opted to be filed within few days. Hence, for evidence of plaintiff, case be put up on 1.2.2011.”
It is pertinent to reproduce the relevant provision of Order VIII Rule 1 of the Code of Civil Procedure (hereinafter to be referred as the `Code'), which reads as under:-
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 fails 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.”
As is clear from the aforementioned facts, written statement was not filed by present petitioner-defendant no.1 within thirty days from the date of service of summons upon her. Written statement was not filed even within 90 days from the date of service of summons upon her.
Only plea taken by present petitioner is that due to change of Lawyer, the paper-book could not be collected from the previous Lawyer and hence, written statement could not be filed. However, it cannot be said to be a sufficient ground for granting an opportunity to petitioner-defendant no.1 to file written statement even beyond the period of 90 days, as
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Civil Revision No.602 of 2011 (O&M)
prescribed in Order VIII Rule 1 of the Code. Even when second Lawyer had put in appearance on behalf of petitioner-defendant no.1 on 2.12.2010, the period of more than one month was given to him to file the written statement by learned trial court.
Law is well settled in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby.
In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order and that grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.
Hence, the present revision petition is hereby dismissed being devoid of any merit.
28.1.2011 meenu
(Ram Chand Gupta) Judge
3 issues framed by the court
Whether the High Court can interfere under Article 227 with the trial court's order striking off defence for failure to file written statement beyond 90 days.
Whether change of lawyer and inability to collect paper-book constitutes sufficient cause to extend the 90-day limit under Order VIII Rule 1 CPC.
Whether the impugned order based on non-filing of written statement shows manifest error or grave injustice warranting revision.
Colour shows how this judgement treated each authority
Surya Dev Rai v. Ram Chander Rai and othersExplained¶30
Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147
3 provisions across 2 enactments
Manpreet Kaur
Surya Kant
Ram Chand Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
