HARJINDER SINGH Vs. KULWANT SINGH

JUDGEMENT

(1.) INSTANT revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 26.7.2013, passed by learned Additional Civil Judge (Senior Division), Faridkot, whereby defence of the petitioner has been struck off for non -filing of written statement. I have heard learned counsel for the petitioner and perused the record.

(2.) LEARNED counsel for the petitioner contends that he is ready to file written statement, however, his right to file written statement has been taken away vide impugned order. There is some lapse in filing of the written statement. The written statement is ready and he will file the same immediately if an opportunity is granted. Learned counsel for the petitioner further states that even the court has not taken into consideration the extended period for filing the written statement. Learned counsel further contends that one opportunity may be given to the petitioner to file written statement which is necessary for proper adjudication of the suit.

(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 provided 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. However, plaintiff/respondent shall also be given an effective opportunity to file replication to written statement of petitioner, if he so desires.