MUNICIPAL COUNCIL Vs. ASHISH MAHAJAN AND ANOTHER

JUDGEMENT

(1.) In the present petition, the challenge is to the order dated 11.1.2012 passed by the learned court below, whereby on account of nonfiling of written statement by the petitioner, its defence was struck off.

(2.) The proceedings in the present case arise out of a suit filed by respondent no. 1/plaintiff against the petitioner and respondent no. 2 for permanent injunction.

(3.) Learned counsel for the petitioner submitted that notice of the suit as well as the application for interim injunction was issued to the petitioner on 14.6.2011 for 3.8.2011. On 3.8.2011, the case was adjourned to 3.9.2011 and then to 27.10.2011 for filing of written statement. However, as the learned Presiding Officer was to go on leave on 27.10.2011, the case was taken up on 25.10.2011 and adjourned to 11.1.2012. On the adjourned date, the defence of the petitioner was struck off. It was submitted that delay in filing the written statement was not intentional rather on account of procedural delays. It was further submitted that evidence of the plaintiff is yet to start on 24.5.2012. The prayer is that order dated 11.1.2012 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, 2005 4 JT 204; Salem Advocate Bar Association, Tamil Nadu v. Union of India, 2005 6 JT 486 and M/s R. N. Jadi and Brothers and others v. Subhashchandra, 2007 9 JT 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.