- (1.) In the present petition, the challenge is to the order dated 11.1.2012 passed by the learned court below, whereby on account of nonfiling of written statement by the petitioner, its defence was struck off.
(2.) The proceedings in the present case arise out of a suit filed by respondent no. 1/plaintiff against the petitioner and respondent no. 2 for permanent injunction. For the view I am taking in the present petition, I do not deem it appropriate to issue notice to the respondents, as the same would unnecessarily delay not only the disposal of the present petition but also the suit as well.
(3.) Learned counsel for the petitioner submitted that notice of the suit as well as the application for interim injunction was issued to the petitioner on 14.6.2011 for 3.8.2011. On 3.8.2011, the case was adjourned to 3.9.2011 and then to 27.10.2011 for filing of written statement. However, as the learned Presiding Officer was to go on leave on 27.10.2011, the case was taken up on 25.10.2011 and adjourned to 11.1.2012. On the adjourned date, the defence of the petitioner was struck off. It was submitted that delay in filing the written statement was not intentional rather on account of procedural delays. It was further submitted that evidence of the plaintiff is yet to start on 24.5.2012. The prayer is that order dated 11.1.2012 striking off defence of the petitioner be set aside and one opportunity be granted to file the written statement. He has relied upon judgments of Hon'ble the Supreme Court in Kailash vs Nanhku and others, 2005 4 JT 204; Salem Advocate Bar Association, Tamil Nadu v. Union of India, 2005 6 JT 486 and M/s R. N. Jadi and Brothers and others v. Subhashchandra, 2007 9 JT 165 to submit that Order VIII Rule 1 of the Code of Civil Procedure has been held to be directory in nature and not mandatory. After hearing learned counsel for the petitioner, I find merit in the contentions raised by him. It has been consistently opined by Hon'ble the Supreme Court in the judgments, referred to above, that Order VIII Rule 1 of the Code of Civil Procedure which provides time for filing of written statement is directory in nature in case sufficient cause is shown for its nonfiling in time. Considering the aforesaid facts, I deem it appropriate to grant one opportunity to the petitioner to file written statement. Accordingly, the petition is accepted. The petitioner is permitted to file written statement before the learned court below on 24.3.2012 with copy in advance to counsel for the plaintiff-respondent no. 1, subject to payment of Rs. 3,000/- as costs to respondent no. 1/plaintiff. The respondent no. 1/ plaintiff shall file, replication if any, on or before next date fixed in the court below with an advance copy to the counsel for the petitioner-defendant. The issues, if required, may be framed/ reframed keeping in view the stand of the petitioner/defendant in the written statement to be filed, on the same day. Summoned witness shall be examined on the date already fixed.;