Rajiv Narain Raina, J. - (1.) THIS petition arises out of a "suit for mandatory injunction for directing the defendants to execute the agreement to sell for the land measuring...." The second prayer is "for permanent injunction for restraining the defendants their agents, representatives from selling, alienating, encumbering or mortgaging the land...". The alternative prayer is for recovery of Rs. 5,37,500/ - with interest. There is no prayer in the suit for executing the sale deed based on existing agreement to sell. The challenge in this petition is to the order dated 15.1.2014 passed by the learned Additional Civil Judge (Senior Division), Dera Bassi which strikes off the defence of the petitioner.
(2.) THE petitioner was one of several defendants arrayed in the suit. Some of the defendants were not served though the petitioner was. Learned counsel for the petitioner submits that the defendants are brothers and the petitioner was waiting for his other brothers to be served in order to present the written statement and for this reason, he sought adjournments thrice for filing the written statement. Learned trial court has reasoned that the period of 90 days has expired. Therefore, the defence should be struck off. The case has been adjourned for filing of written statement on behalf of defendant No. 2 who stands served. The petitioner and defendant No. 2 are brothers and therefore have common defence against the plaintiff.
(3.) IT is a well settled that the rules and procedures are to be seen not literally and each case requires the special attention of the Court to take care of justice before passing the adverse orders which shuts out the defence of one of the defendants. In Kailash v. Nanhku and others; : 2005(4) SCC 480, the Supreme Court has, while considering the time schedule prescribed by Order 8 Rule 1 CPC, held as under: - 29. It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order 8 is circumscribed by the words -"shall not be later than ninety days" but the consequences flowing from non -extension of time are not specifically provided though they may be read by necessary implication. Merely, because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form. X X X 41. Ordinarily, the time schedule prescribed by Order 8, Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for asking more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the Court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order 8, Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended. 42. A prayer seeking time beyond 90 days for filing the written ought to be made in writing. In its judicial discretion exercised on well -settled parameters, the Court may indeed put the defendants on terms including imposition of compensatory costs and may also insist on affidavit, medical certificate or other documentary evidence (depending on the facts and circumstances of a given case) being annexed with the application seeking extension of time so as to convince the Court that the prayer was founded on grounds which do exist. 43. The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief may be, by the court. In no case, the defendant shall be permitted to seek extension of time when the court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel. The court may impose costs for dual purpose: (i) to deter the defendant from seeking any extension of time just for asking; and (ii) to compensate the plaintiff for the delay and inconvenience caused to him. 44. However, no straitjacket formula can be laid down except that the observance of time schedule contemplated by Order 8 Rule 1 shall be the rule and departure therefrom an exception, made for satisfactory reasons only. We hold that Order 8 Rule 1, though couched in mandatory form, is directory being a provision in the domain of processual law.;