Disposed

Karnail Singh & Others v. Harvijay Partap Singh and Others

Punjab & Haryana HC6 Mar 2012CR/1475/2012

Case brief

AI extract

What is this about?

Revision petition against an order striking off the right to file a written statement. The court applied Salem Advocate Bar Association holding CPC provisions directory to advance justice, granting a final opportunity to file the statement with costs.

What did the court decide?

Right to file written statement restored; order dismissing the right struck off; granted one last opportunity to file on 14.03.2012 upon payment of Rs.5000/- costs.

Karnail Singh & Others Vs Harvijay… — Civil Procedure and Limitation | Punjab & Haryana HC (2012)

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CR No.1475 of 2012 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CR No.1475 of 2012 (O&M) Date of decision:06.03.2012

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Karnail Singh and others

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......Petitioners

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Vs.

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Harvijay Partap Singh and others

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...Respondents

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CORAM:- HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA. Present: Mr. Vaibhav Sehgal, Advocate for the petitioners.

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Tejinder Singh Dhindsa, J.

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The present revision petition is directed against the order dated 16.12.2011 passed by Additional Civil Judge (Senior Division), Ludhiana whereby, the right of filing of written statement on behalf of the present petitioners (defendants No.5, 10 & 14 in the suit) has been struck off. Hon'ble Apex Court in Salem, Advocate Bar Association, Tamilnadu Versus Union of India reported as 2005 (3) RCR (Civil) 530 while examining the provisions of order 8 Rule 1 of the Code of Civil Procedure has observed as follows:

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“The use of the word 'shall' in Order VIII Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word 'shall' is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having

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CR No.1475 of 2012 (O&M)

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regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure are handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.”

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As such, it would be in the interest of justice to grant to the petitioners one last opportunity to file the written statement on the date already fixed in the trial Court i.e. on 14.03.2012 subject to payment of Rs.5000/- as costs to respondent No.1.

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Revision petition is disposed of accordingly.

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March 06, 2012 (TEJINDER SINGH DHINDSA) harjeet JUDGE

Karnail Singh & Others v. Harvijay Partap Singh and Others

Case brief

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Karnail Singh & Others v. Harvijay Partap Singh and Others

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