Allowed

Chhinder Kaur and Ors. v. Chhinder Singh and Ors.

Punjab & Haryana HC1 Mar 2012CR/2098/2011

Case brief

AI extract

What is this about?

The Court considered a civil revision petition challenging an order dismissing an application to recall a struck-off defence. The Court allowed the written statement to be taken on record despite the original breach, while imposing costs on the petitioners.

What did the court decide?

Written statement to be taken on record; plaintiffs granted option to file replication; costs of Rs. 5,000 awarded to plaintiffs.

Chhinder Kaur and Ors. Vs Chhinder Singh… — Execution and Attachment | Punjab & Haryana HC (2012)

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Civil Revision No. 2098 of 2011 [1]

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No. 2098 of 2011 (O&M) Date of decision: 1.3.2012

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Chhinder Kaur and others

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.. Petitioners

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Chhinder Singh and others

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.. Respondents

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CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL

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Present: Mr. Adarsh Jain, Advocate for the petitioners.

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Mr. Ajay Kumar Sharma, Advocate for respondents No. 1 to 8.

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Rajesh Bindal J.

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Some of the defendants are before this court challenging the order dated 9.3.2011, passed by the learned court below, dismissing the application filed by the petitioners for re-call of order dated 14.1.2009, whereby their defence was struck off on account of non-filing of the written statement on the date fixed.

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Briefly, the facts of the case are that a suit was filed by the plaintiffs-respondents No. 1 to 8 for declaration and permanent injunction. The parties are apparently related to each other. After service, the petitioners appeared and sought time for filing written statement. However, on 14.1.2009, when the same was not filed, the defence of the petitioners was struck off. On the same day, an application was filed for recalling of the order and taking the written statement on record. The same was dismissed by the learned court below vide order dated 9.3.2011.

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Learned counsel for the petitioners submitted that the counsel engaged by the petitioners had to come from out-station. On account of break down of his vehicle, he was a bit late in reaching the court. The

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Civil Revision No. 2098 of 2011 [2]

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order striking off the defence of the petitioners was passed by the court below at 10.30 AM. Immediately after the counsel reached the court at about 11.00 AM, application for re-calling of the order passed earlier in the day and for taking the accompanying written statement on record was filed, which was dismissed. He further submitted that even when the defence of the petitioners was struck off, the case was still adjourned for service of some of the defendants in the suit, hence, it cannot be said that on account of some lapse on the part of the petitioners in filing the written statement, the proceedings in the suit had been delayed. The petitioners only pray for taking their written statement on record which in fact is already on file of the court annexed with the application. The same will not entail framing of any fresh issue. It will only enable the petitioners to cross-examine the witnesses of the plaintiffs and lead their evidence in defence. The case is still at the stage of evidence of the plaintiffs.

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On the other hand, learned counsel for respondents No. 1 to 8 submitted that Order 8 Rule 1 CPC provides that written statement is to be filed within 30 days of the service of notice. The time could be extended only upto 90 days. In the present case, the petitioners had been seeking time since 3.10.2008 for filing written statement. Having failed to do so, the court below had rightly struck off their defence on 14.1.2009.

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Heard learned counsel for the parties and perused the paper book.

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The fact is that on the date when the defence of the petitioners was struck off by the court below, they had filed application along with the written statement seeking permission to place the same on record by re-calling the order passed earlier in the day. The application remained pending for a period of more than two years. Such a course certainly defeats the object for which amendment in the Code of Civil Procedure was made.

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It is evident from the zimni orders produced on record that when the defence of the petitioners was struck off, the matter was still pending for service of some of the defendants. Further, as is evident that issues in the present case have already been framed on 20.4.2011 and the case is stated to be fixed for evidence of the plaintiffs. The stand of the

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Civil Revision No. 2098 of 2011 [3]

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petitioners is that in case the written statement already filed by the petitioners along with the application is taken on record, the same will not require framing of any new issue. It will enable the petitioners to crossexamine the witnesses produced by the plaintiffs and lead evidence in defence.

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Considering the aforesaid circumstances, in my opinion, the written statement already filed by the petitioners along with the application on the date when their defence was struck off deserves to be taken on record. However, the plaintiffs should be granted opportunity to file replication thereto, if they so desire. Still considering the fact that there was some lapse on the part of the petitioners, they are burdened with costs of ` 5,000/-, which shall be payable to the plaintiffs.

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The petition stands disposed of.

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(Rajesh Bindal) Judge

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1.3.2012 mk

Chhinder Kaur and Ors. v. Chhinder Singh and Ors.

Case brief

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Chhinder Kaur and Ors. v. Chhinder Singh and Ors.

Case brief

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