SHAM SUNDER Vs. SURAJ PARKASH

JUDGEMENT

(1.) The present revision petition has been preferred against the order dated 20.09.2016 passed by learned Civil judge (Jr. Division), Jind, whereby the defence of the petitioners(defendants no.1, 2, 11 and 12) has been struck off due to non filing of the written statement as per the provisions of Order 8, Rule 1 of the Code of Civil Procedure, 1908 (for short CPC).

(2.) I have heard Mr. A.K. Kansal, Advocate, learned counsel for the petitioners, Mr. Ashok Bhardwaj, Advocate, learned counsel for respondent no.1 and have carefully gone through the paper book.

(3.) Learned counsel for the petitioners contended that the valuable rights of the petitioners are involved in the present suit. The plaintiffs-respondents have filed the suit for partition of the urban property along with recovery of mesne profit. He contended that the petitioners could not file the written statement as the summoning of some of the defendants was yet to be completed. He further contended that the learned trial Court itself vide order dated 08.07.2016 has given the last opportunity to the petitioners to file the written statement. The written statement was filed on the next date fixed by the learned trial Court. But, even then their defence has been struck off. He further contended that the provisions of Order 8, Rule 1 Code of Civil Procedure are not mandatory in nature. These are only the rule of procedure and are handmaid of justice. The party should not be denied the opportunity of participating in the process of justice dispensation. He contended that the petitioners have already filed the written statement which was taken on record by the learned trial Court, so the learned trial Court was not justified to struck off the defence. He relied upon case Shaikh Salim Haji Abdul Khayumsab Vs. Kumar, 2005(4) R.C.R.(Civil) 823 : 2006 Law Suit (SC) 1538.