DARSHNA Vs. KAMLA

JUDGEMENT

(1.) This civil revision petition under Article 227 of the Constitution of India read with Sec. 115 CPC has been filed by petitioner/defendant, impugning the legality of order dtd. 16/11/2023 (Annexure P-6), rendered by learned Civil Judge (Junior Division), Jind, in Civil Suit CIS No.CS519/2023 titled 'Kamla vs. Darshna', in terms of which, on account of non-filing of written statement and reply to stay application despite availing effective opportunities, defence of petitioner/defendant was struck off.

(2.) Learned counsel for petitioner inter alia contends that respondent/plaintiff filed civil suit for declaration and for permanent injunction. On receipt of notice of the suit, counsel for petitioner/defendant appeared before Trial Court on 9/8/2023 and sought time to file Power of Attorney, written statement and reply to application under Order XXXIX Rules 1 and 2 read with Sec. 151 CPC and the matter was adjourned to 15/9/2023. On 15/9/2023, on the request of counsel for petitioner/ defendant, the case was adjourned to 19/10/2023. However, due to some unavoidable circumstances, petitioner/defendant could not appear in person before Trial Court on 19/10/2023 and 16/11/2023 though her counsel was present in the Court and sought time to file written statement and reply to injunction application. Learned Trial Court vide order dtd. 16/11/2023 struck off the defence of petitioner/defendant without affording any further opportunity to file written statement and reply to stay application. Petitioner/defendant could not file written statement and reply to stay application as she could not arrange the relevant documents. Learned counsel for petitioner further contends that provisions of Order VIII Rule 1 CPC are only directory and not mandatory and to this effect, reliance has been placed upon decision of Hon'ble Supreme Court in Salem Advocate Bar Association, Tamil Nadu vs. Union of India, AIR 2005 (SC) 3353, wherein it has been held as under:-

(3.) I have heard learned counsel for petitioner and have also gone through the contents of petition especially the documents placed on the record.