SURESH KUMAR Vs. RAJPAL THAKUR

JUDGEMENT

(1.) Vide the impugned order dated 11th May, 2004, the learned Court of Civil Judge (Junior Division) (Court No. 3), Shimla has struck off the defence of the petitioner -defendant by exercising its power/jurisdiction in terms of Order 8 Rule 1 of the Code of Civil Procedure since, as per the contents of the impugned order, the petitioner -defendant having been served with the summons for appearance on 14th January, 2004, he filed the written statement on 23rd April, 2004, i.e. beyond the period of 90 days, as prescribed in Order 8 Rule 1, Order 8 Rule 1 reads as under : - "1. Written statement. - The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defense: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed 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."

(2.) Rule 10 of Order 8 clearly stipulates that where any party from whom a written statement is required in terms of Rule 1 fails to present the same within the time permitted, the court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit. Rule 10 is reproduced hereinafter for ready reference, which reads thus: - "10. Procedure when party fails to present written statement called for by Court. - 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, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn UP"

(3.) It is apparently in purported exercise of the power under Rule 10 (supra) that the learned trial court has struck off the defence of the petitioner -defendant because according to it the written statement was not filed within the outer limit of 90 days from the date of service of summons upon him.