- (1.) In the present petition, the challenge is to the order dated 4.8.2014 passed by the learned court below, whereby on account of nonfiling of written statement by the petitioner, his defence was struck off. The proceedings in the present case arise out of a suit filed by respondent no. 1/plaintiff against the petitioner/ defendant no. 1 and respondent nos. 2 to 7/ defendant nos. 2 to 7 for declaration. 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.
(2.) Learned counsel for the petitioner submitted that notice of the suit was issued to the petitioner on 18.7.2013. On 18.7.2013, the summons issued to the petitioner and other defendants were received back for want of correct addresses. It was ordered that the defendants be summoned on filing of correct addresses for 22.8.2013. On 22.8.2013, the case was again adjourned to 21.10.2013, as correct addresses were not furnished. On 21.10.2013, the case was adjourned to 2.12.2013. The case was taken up on 30.11.2013, as the learned Presiding officer was to go on leave on 2.12.2013. The petitioner appeared through his counsel on 26.4.2014 and the case was adjourned to 19.5.2014. On 19.5.2014 and 5.7.2014, the petitioner could not file the written statement. The case was adjourned to 2.8.2014. However, as the learned Presiding Officer was to go on leave on 2.8.2014, the case was taken up on 1.8.2014 and adjourned to 4.8.2014. 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. The petitioner is NRI and represented through power of attorney holder, who could not take care of the case properly. It was further submitted that evidence of the plaintiff is yet to start on 20.10.2014. The prayer is that order dated 4.8.2014 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.
(3.) 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.;