AVTAR SINGH Vs. SMT. PARAMJIT KAUR

JUDGEMENT

(1.) The present petition has been directed against order dated 25.05.2016 (Annexure P-2) whereby defence of the petitioners (defendants No.1 to 4) has been struck off for want of filing of written statement.

(2.) Counsel for the petitioners has submitted that a serious prejudice is likely to be caused to the petitioners in case they are not permitted to file the written statement and defend the proceedings. It is further argued that Sh. Kulwant Singh, Advocate, filed memo of appearance on behalf of the petitioners before the trial Court on 23.11.2015 and thereafter, the case was adjourned on number of occasions for service of defendant No.5- Sh. Ranjit Singh and suit against the said defendant was dismissed by the Court vide order dated 25.05.2016 due to failure of the respondent/plaintiff to furnish his correct address. It is argued that in none of the orders passed by the trial Court since 23.11.2015 till 25.05.2016, the petitioner was ever called upon to file the written statement. According to learned counsel, the trial Court without appreciating the facts in right perspective and the serious consequence likely to ensue by closing right of the petitioners to file the written statement has passed the impugned order abruptly by holding that statutory period for filing the written statement has already elapsed and as such defence of the petitioners stands struck off. In addition, it is submitted that the provisions of Order 8, Rule 1 of the Code of Civil Procedure, 1908 (for short 'CPC') are not mandatory but directory in nature.

(3.) I have heard counsel for the petitioners, perused the paper book particularly the various zimini orders recorded by the trial Court and the order impugned.