MEHAL SINGH Vs. GOBINDER SINGH

JUDGEMENT

(1.) DEFENDANT No. 1 Mehal Singh has filed this petition under Article 227 of the Constitution of India for setting aside the order dated 22.5.2004, passed by Additional Civil Judge (Senior Division), Sangrur, whereby his application seeking permission to file written statement has been dismissed.

(2.) IN this case, on 11.12.2003, the petitioner was served in the suit filed by respondent No. 1 for appearance on 12.12.2003. On that date, he appeared and sought time to file written statement. On the adjourned date i.e. 6.1.2004, written statement could not be filed on behalf of the petitioner and the case was adjourned to 21.1.2004, on which date, the Presiding Officer was on leave and the case was adjourned to 9.2.2004. On 9.2.2004, no written statement was filed on behalf of the petitioner because of his illness from 28.1.2004 to 29.2.2004, therefore, defence of the petitioner-defendant No. 1 was struck off because of non-filing of written statement. After his recovery, on 8.3.2004, the petitioner filed on application for granting him permission to file written statement. The written statement was also filed along with the application. On 22.5.2004, the trial Court dismissed the application while holding that the petitioner did not file the written statement within the period of 30 days and under the proviso to Order 8 Rule 1 C.P.C., the defendant can be permitted to file written statement on such other day, which shall not be later than 90 days from the date of service of the summons.

(3.) AFTER hearing the arguments of learned counsel for the parties and going through the impugned order, I am of the opinion that the trial Court has failed to exercise its jurisdiction while dismissing the application of the petitioner. It is well settled that the Court has the power mid jurisdiction to grant permission to the defendant to file written statement even beyond the period of 90 days. The Hon'ble Apex Court in Kailash v. Nankhu, 2005(2) RCR(Civil) 379 : (2005-3)141 P.L.R. 558 (S.C.), Rani Kusum (Smt.) v. Kanchan Devi (Smt.), 2005(3) RCR(Civil) 727 : (2005-3)141 P.L.R. 627 (S.C.) and recently in Shaikh Salim Haji Abdul Khayumsab v. Kumar and others, 2005(4) RCR(Civil) 823 : (2006-1)142 P.L.R. 284 (S.C.) has held that the provisions of Order 8 Rule 1 C.P.C. are not mandatory but are directory. Order 8 Rule 1 C.P.C. provides that the defendant shall within thirty days from the date of service of summons, may file the written statement of his defence. However, the proviso to this Rule further provides that if the defendant does not file the written statement within the said period of thirty days, he shall be permitted to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. While interpreting the aforesaid provision, in Shaikh Salim Haji Abdul Khayumsab's case (supra), the Hon'ble Apex Court has held that the Court can permit the defendant to file the written statement even beyond 90 days. The provision does not specifically take away the power of the Court to take the written statement on record if filed after 90 days. It has been further held that a party cannot be made to suffer if the Court has committed a mistake. The maxim of equity, namely, actus curiae neminem gravabit - an act of Court shall prejudice no man, is also applicable in that situation.