Allowed

Avtar Singh v. Asset Reconstruction Co. (India) Ltd.

Punjab & Haryana HC11 May 2012CR/2700/2012

Case brief

AI extract

What is this about?

The High Court allowed the petitioner's civil revision challenging an order striking off his defence for failure to file a written statement. Citing Supreme Court precedents, the court held that Order VIII Rule 1 CPC is directory if sufficient cause is shown and granted one opportunity to file the statement by 14.5.2012.

What did the court decide?

The order striking off the petitioner's defence dated 28.7.2011 is set aside, and one opportunity is granted to file the written statement before the court below on or before 14.5.2012.

Avtar Singh Vs Asset Reconstruction… — Civil Procedure and Limitation | Punjab & Haryana HC (2012)

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Civil Revision No. 2700 of 2012

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IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH

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Civil Revision No. 2700 of 2012 (O&M)

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Date of decision : 11.5.2012

Avtar Singh

.. Petitioner

versus

Asset reconstruction Company (India) Limited

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.. Respondent

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Coram: Hon'ble Mr. Justice Rajesh Bindal

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Present: Mr. G. S. Jagpal, Advocate, for the petitioner.

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Rajesh Bindal, J.

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In the present petition, the challenge is to the order dated 28.7.2011 passed by the learned court below, whereby on account of nonfiling of written statement by the petitioner, his defence was struck off.

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The proceedings in the present case arise out of a suit filed by respondent /plaintiff against the petitioner for recovery of ` 4,37,331.02.

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For the view I am taking in the present petition, I do not deem it appropriate to issue notice to the respondent, as the same would unnecessarily delay not only the disposal of the present petition but also the suit as well.

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Learned counsel for the petitioner submitted that after issuance of notice in the suit, the petitioner appeared through counsel before the learned court below on 3.5.2011. On the next date of hearing i.e. 8.6.2011, written statement could not be filed as the same was not ready and the case was adjourned to 28.7.2011. On 28.7.2011, as the petitioner had gone out of station to attend some family function and could not appear in the court, his counsel prayed for time to file written statement, however, the learned court below struck off his defence before even expiry of 90 days. Due to this reason, the written statement could not be filed in time. It was submitted that delay in filing the written statement was not intentional. The petitioner

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Civil Revision No. 2700 of 2012

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had, in fact, paid 14 installments of loan and surrendered possession of car himself which was sold by the bank. These pleas are sought to be raised in the written statement. It was further submitted that the plaintiff had failed to lead any evidence inspite of grant of numerous opportunities. The case is fixed for 14.5.2012 for evidence of the plaintiff. The prayer is that order dated 28.7.2011 striking off defence of the petitioner be set aside and one opportunity be granted to file the written statement. He has relied upon judgments of Hon'ble the Supreme Court in Kailash vs Nanhku and others , JT 2005(4) SC 204; Salem Advocate Bar Association, Tamil Nadu v. Union of India , JT 2005(6) SC 486 and M/s R. N. Jadi and Brothers and others v. Subhashchandra , JT 2007(9) SC 165 to submit that Order VIII Rule 1 of the Code of Civil Procedure has been held to be directory in nature and not mandatory.

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After hearing learned counsel for the petitioner, I find merit in the contentions raised by him. It has been consistently opined by Hon'ble the Supreme Court in the judgments, referred to above, that Order VIII Rule 1 of the Code of Civil Procedure which provides time for filing of written statement is directory in nature in case sufficient cause is shown for its nonfiling in time.

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Considering the aforesaid facts, I deem it appropriate to grant one opportunity to the petitioner to file written statement. Accordingly, the petitioner is permitted to file written statement before the learned court below on 14.5.2012 with a copy to counsel for the respondent/ plaintiff.

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The petition stands disposed of accordingly.

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Copy of the order be given dasti to counsel for the petitioner on payment of usual charges.

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(Rajesh Bindal) Judge

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11.5.2012 vs

Avtar Singh v. Asset Reconstruction Co. (India) Ltd.

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Avtar Singh v. Asset Reconstruction Co. (India) Ltd.

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