Ajay Kumar Mittal, J. - (1.) The petitioner-defendants are aggrieved by the order dated 6.11.2009 passed by the trial court whereby the defence of the defendant-petitioners has been struck off for not filing the written statement within the stipulated period of 90 days from the date of appearance.
(2.) Briefly the facts as narrated in the petition necessary for adjudication of the revision petition may be noticed. The respondents plaintiffs filed a suit for possession of land measuring 4 Kanals 4 Marlas bearing khasra No.10/24/1/2/2 situated in village Kaler Tehsil Ajnala, District Amritsar. The defendants-petitioners have denied their claim on the basis of various registered sale deeds. On receipt of notice, the petitioners appeared in Court on 21.11.2008 and the case was adjourned to 6.1.2009 when the case was again adjourned for 13.2.2009 but due to wrong date having been noted by them as 23.2.2009, ex-parte proceedings were taken. The application for setting aside ex-parte proceedings was filed immediately which was decided on 25.8.2009 on which date the plaintiffs-respondents filed an application under Order 8 Rule 1 of the Civil Procedure Code (In short "the Code"). The petitioners filed reply to the same on 11.9.2009 and the trial court vide order dated 6.11.2009 has struck off their defence.
(3.) Learned counsel for the petitioners submitted that the written statement was ready on 11.9.2009, copy of which has been annexed as Annexure P-3 to the petition but the same could not be filed till the order dated 13.2.2009 ordering ex-parte proceedings was set aside which was set aside on 25.8.2009 when instant application under Order 8 Rule 1 of the Code was filed for striking off defence, the reply to which was filed on 11.9.2009 when the written statement was ready but the trial court vide impugned order dated 6.11.2009 had directed striking off defence of the defendants-petitioners. According to the learned counsel, in the reply to the application for striking off defence, it was specifically mentioned that written statement was ready and under the circumstances it could not be said that there was intentional or deliberate delay in filing the written statement necessitating striking off defence. He urged that provisions of Order 8 Rule 1 of the Code are not mandatory but directory in nature and under the circumstances, the striking off of defence of the defendants-petitioners is harsh and shall result in valuable substantive right being lost in respect of land in dispute. Reliance was placed on the judgments in Salem Advocate Bar Association v. Union of India 2005(3) RCR (Civil) 530 (SC ), Smt. Rani Kusum v. Smt. Kanchan Devi and others, AIR 2005 SC 3304 , Kailash v. Nanhku and others, 2005(4) SCC 480 , M/s Panjon Ltd. v. M/s Dhingra Enterprises 2007(2) RCR (Civil) 715 and Zolba v. Keshao and others 2008(2) RCR (Civil) 869 in support of his submissions.;