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Cites 3 docs
The Code Of Civil Procedure (Amendment) Act, 2002
Salem Advocate Bar Association, ... vs Union Of India on 9 August, 2010
Article 227 in The Constitution Of India 1949

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Punjab-Haryana High Court
Rajwinder Kaur vs Gurmail Kaur And Others on 16 July, 2013

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Civil Revision No.4178 of 2013

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Civil Revision No.4178 of 2013

Date of decision: 16.07.2013

Rajwinder Kaur

....Petitioner

Versus

Gurmail Kaur and others

....Respondents

CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH 1) Whether Reporters of the local papers may be allowed to see the judgment ?

2) To be referred to the Reporters or not ? 3) Whether the judgment should be reported in the Digest ? Present: - Mr. Parminder Paul Sharma, Advocate, for the petitioner. *****

PARAMJEET SINGH, J.

Instant revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 06.05.2013 (Annexure P-5) whereby application of the petitioner for filing written statement has been declined and defence of the petitioners has been struck off.

Briefly stated, the facts of the present case are that plaintiff/respondent No.1 filed suit for declaration to the effect that plaintiff is entitled to the whole amount of service benefits like CWF, Risk Fund etc. of her son late Sukhpal Singh son of Sh. Jeeva Singh Singh Ravinder

2013.07.22 11:44

I attest to the accuracy and

integrity of this document

Chandigarh

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Civil Revision No.4178 of 2013

CT/GD of 127 BN, CRPF, being her mother, payable by defendant Nos.1 to 4 and petitioner/defendant No.5 has no concern with the said amount. Relief of permanent injunction has also been sought restraining petitioner/defendant No.5 from claiming and/or withdrawing any amount of service benefits of Sukhpal Singh. In pursuance to notice, petitioner put in appearance through counsel on 04.12.2012 and did not file the written statement till the passing of impugned order. The petitioner was under sever shock due to the death of her husband and was not aware of the technicalities of law, therefore, written statement could not be filed. Vide impugned order dated 06.05.2013 (Annexure P-5), defence of petitioner has been struck off due to non-filing of written statement within the stipulated period of 90 days. Hence, this petition. I have heard learned counsel for the petitioner and perused the record.

Learned counsel for the petitioner contended that delay in filing written statement by the petitioner is not intentional, rather bona fide one. The learned counsel further contended that one opportunity may be given to the petitioner to file written statement which is necessary for proper adjudication of the suit. I have considered the contentions of learned counsel for the petitioner.

Through this petition, the petitioner seeks permission to file written statement. It is correct that proviso to Order 8 Rule 10 of CPC Singh Ravinder

2013.07.22 11:44

I attest to the accuracy and

integrity of this document

Chandigarh

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Civil Revision No.4178 of 2013

lays down that 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, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. In the context of the provision, despite use of the word 'shall', the Court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order 8 Rule 1 and Rule 10 of CPC, the doctrine of harmonious construction is required to be applied. The effect would be that under Order 8 Rule 10 of CPC, the Court has discretionary power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order 8 Rule 1 of CPC. Moreover, the said provision being rule of procedure has to be held to be directory and not mandatory in nature. This provision has to be applied with some flexibility and not with rigidity or inflexibility. Rules of procedure are handmaid to the administration of justice and are meant to meet the ends of justice and not to thwart or obstruct the same. In Salem Advocate Bar Association, Tamil Nadu vs. Union of India AIR 2005 Supreme Court 3353, it has been held by the Hon'ble Supreme Court that in the facts and circumstances of a given case, more than 90 days can be granted for filing written statement. In the present case, this Court is of the considered opinion that ends of justice would be met if the petitioner Singh Ravinder

2013.07.22 11:44

I attest to the accuracy and

integrity of this document

Chandigarh

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Civil Revision No.4178 of 2013

is allowed to file written statement in trial court on date fixed. However, plaintiff/respondent No.1 shall also be given an effective opportunity to file replication to written statement of petitioner, if they so desire. For the reasons stated above, the impugned order dated 06.05.2013 (Annexure P-5) is set aside. The revision petition is allowed in the aforementioned terms.

(Paramjeet Singh)

Judge

July 16, 2013

R.S.

Singh Ravinder

2013.07.22 11:44

I attest to the accuracy and

integrity of this document

Chandigarh