- (1.) ALL these three writ petitions are in between the same parties the sub ject matter of the suit being similar and controversy involved in all the writ petitions is same, therefore, for the sake of convenience, they are being decided by this common judg ment.
(2.) ALL these writ petitions have been filed for quashing the impugned orders dated 01-02-2005 and 8-8- 2005 passed by the trial court. By the order dated 1-2-2005, the learned Civil Judge (Sr. Div.) Roorkee re jected the application for grant of fur ther time to file the written statement and ordered the case to proceed ex-parte on the ground that the defend ant failed to file his written statement even after expiry of the period of 90 days after the service of summons on him on 11-8-2004. By the order dated 8-8- 2005, the application of the defendant-petitioner for setting aside the order dated 1-2-2005 was rejected by the Additional District Judge, I F. T. C. Roorkee at Roshanabad. Relevant facts giving rise to these writ petitions are that the re spondent has filed three suits before the Civil Judge (Senior Division) Roorkee against the petitioner on 28-7-2004 being Original Suit No. 40 of 2004, O. S. No. 41 of 2004 and O. S. No. 39 of 2004 Yogendra Singh Vs. Teerath Singh. These suits are pend ing for disposal before the Additional District Judge, I F. T. C. Roorkee. It comes out from the perusal of the record that after filing of the suit, summons were issued to the defend ant-petitioner for the date fixed. The summons were served on 11-8-2004. It reveals that no written statement was filed by the defendant in the suits till 1-2-2005. Both the parties were present on that date before the trial court. Application for adjournment was moved on the personal ground of illness of the counsel mentioning that the written statement was not ready. The Plaintiff-respondent opposed the application on the ground that the 90 days period of service of summons on the defendant has already elapsed but no written statement was filed by the defendant. The Trial court ob served that the defendant failed to file written statement within the stipu lated period of 90 days, though he was served on 11-8-2004, hence the trial court passed the order to pro ceed ex-parte against the defendant and accordingly rejected the applica tion. It appears that subsequently the case was transferred to the Court of Additional District Judge, I F. T. C. Roorkee. In that court on 28-2-2005, the defendant moved an application alleging therein that the defendant is an illiterate person and not ac quainted with the legal knowledge. After receipt of notice, the defendant contacted the lawyer Sri Manmohan and engaged him as his counsel. The defendant was not aware that the said counsel practises on criminal side and not on civil side. It was due to the mistake of the lawyer that no written statement was filed and ad journments were sought. It is alleged that it was only on 1-2-2005, that the defendant came to know that the court had rejected his application. It was prayed that in case the order dated 1-2-2005 is not recalled, the rights of the defendants will be ad versely affected. On this application, the Plaintiff filed his objection sup ported by affidavit stating therein that under the provisions of Order 8, Rule 1 C. P. C. , no relaxation can be granted and the ignorance of law is not excusable. The learned trial court after hearing the arguments of the parties' counsel has observed that the defendant took time on 13-9-2004 on the ground that Sri Man Mohan Ad vocate could not inspect the file. On 6-10-2004 again the counsel took ad journment on personal ground. On 9-11-2004, adjournment was sought as he was busy in other cases. On 10-12-2004, time was sought on account of personal ground. It was found that on 1-2-2005, the application was moved on behalf of the defendant by another advocate, therefore, it was not acceptable that Sri Manmohan used to take time in the case through out. The court further observed that Sri B. M. Sharma, Advocate, also filed his Vakalatnama in the case on 25-2-2005 and even after notice of the fact that suit was ordered to proceed ex parte, no action was taken promptly. Ultimately, by the impugned order dated 8-8-2005, the trial court did not find favour with the contention of the defendant and re lying upon the Apex Court Judgment in the case of Kailash Vs. Nanhku [ (2005) 4, Supreme Court Cases, 272] observed that in the instant case, the circumstances were not ex ceptional and they cannot be said to be beyond the control of the defend ant and accordingly rejected the ap plication of the defendant by a de tailed order. On behalf of the Plaintiff-re spondent, counter-affidavit has been filed. Therein it was stated by the Plaintiff-respondent that the stand taken by the defendant-petitioner that the correct copy of the Plaint was not annexed with the summons is totally a false and concocted story, while he appeared on several dates in the pro ceedings of the suit. Not only this, the petitioner-defendant sought adjourn ments on different grounds but never applied to the court for copy of the Plaint. It was contended in para No. 8 of the Counter Affidavit that the Hon'ble Apex Court has held in the case of "kailash Vs. Nanhku" [ (2005) 4, Supreme Court cases, 272] that only in exceptional circumstances the Court may grant time to file written statement beyond the statutory pe riod of 90 days as provided under Or der 8, Rule 1 C. P. C. and the peti tioner-defendant entirely failed to es tablish before the lower court that he had been precluded from filing the written statement within the stipu lated period of 90 days due to excep tional circumstances.
(3.) I have head Sri Lok Pal Singh, learned counsel for the petitioner defendant and Sri M. S. Tyagi, learned counsel for the respondent and pe rused the entire material on record. The main ground of challenge raised by the learned counsel for the petitioner is that the provisions of Or der 8, Rule 1 C. P. C. are directory in nature and not mandatory and the trial court by misinterpreting the pro vision of law has committed illegality in rejecting the application. Learned counsel for the petitioner submitted that all the rules and procedure are the handmaid of justice and no party should be denied the opportunity of participating in process of justice dis pensation. Learned counsel for the petitioner has relied upon the Apex Court judgments in the following cases: 1. Sardar Amarjit Singh Kalra (Dead) by L. rs. Vs. Pramod Gupta (Smt.) (Dead) by Lrs. and others [ (2003) 3 Supreme Court Cases, 272]. 2. Kailash Vs. Nanhku and Others [ (2005) 4, Supreme Court Cases, 480. ] 3. Salem Advocate Bar Associa tion, T. N. Vs. Union of India 1 (2005) 6 Supreme Court Cases, 344].;