KARAM CHAND Vs. FAQUIR CHAND AND ANOTHER

JUDGEMENT

(1.) INSTANT revision has been filed under Article 227 of the Constitution of India for setting aside the order dated 09.05.2013 (Annexure P -3) passed by the learned Additional Civil Judge (Sr. Divn.) Garshankar whereby defence of petitioner/defendant no. 2 has been ordered to be struck off. Briefly stated, the facts of the present case are that respondent no. 1 -plaintiff filed suit for declaration claiming himself as co -owner/co -sharer and in exclusive possession of the suit land measuring 6 marlas out of land measuring 6 kanals 17 marlas with further relief as detailed in the plaint. Upon notice, the petitioner put in appearance through counsel. On 4.5.2013, the petitioner through his counsel filed application under Section 151 CPC for supply of the documents referred to in the plaint. The petitioner alleges to be owner in possession of the land in dispute on the ground that he has purchased the land measuring 3 kanals 3 marlas 3 sarsahi vide registered sale deed dated 27.10.2006 for sale consideration of Rs. 1,24,000/ - and another land measuring 3 kanals 3 marlas 3 sarsahi vide registered sale deed dated 27.10.2006 for sale consideration of Rs. 1,24,000/ -. The mutation on the basis of both the sale deeds has already been sanctioned and ultimately since the documents were not being supplied, the petitioner moved application for a direction to supply documents and also filed written statement before the learned trial Court. The said action on his part, has been taken by the learned Court to be against him on the premise that on one hand, the documents have been asked for and simultaneously reply has also been filed and vide impugned order dated 09.05.2013 (Annexure P -3), the petitioner has not been allowed to file written statement and defence of the petitioner has been struck off.

(2.) I have heard learned counsel for the petitioner and perused the record.

(3.) THROUGH this petition, the petitioner seeks permission to file written statement. It is correct that proviso to Order 8 Rule 10 of CPC lays down that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. In the context of the provision, despite use of the word 'shall', the Court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order 8 Rule 1 and Rule 10 of CPC, the doctrine of harmonious construction is required to be applied. The effect would be that under Order 8 Rule 10 of CPC, the Court has discretionary power to allow the defendant to file written statement even after expiry of period of 90 days stipulated in Order 8 Rule 1 of CPC. Moreover, the said provision being rule of procedure has to be held to be directory and not mandatory in nature. This provision has to be applied with some flexibility and not with rigidity or inflexibility. Rules of procedure are handmaid to the administration of justice and are meant to meet the ends of justice and not to thwart or obstruct the same. In Salem Advocate Bar Association, Tamil Nadu vs. Union of India : AIR 2005 SC 3353, it has been held by the Hon'ble Supreme Court that in the facts and circumstances of a given case, more than 90 days can be granted for filing written statement. In the present case, this Court is of the considered opinion that ends of justice would be met if the petitioner is allowed to file written statement in trial court on date fixed or prior to that by moving an appropriate application, subject to costs of Rs. 5,000/ - to be paid by the petitioner to respondent no. 1 -plaintiff. However, respondent no. 1 -plaintiff shall also be given an effective opportunity to file replication to written statement of petitioner, if he so desire. For the reasons stated above, the impugned order dated 09.05.2013 (Annexure P -3) is set aside. The revision petition is allowed in the aforementioned terms.