SATISH KUMAR MITTAL, J. - (1.) THE petitioners, who are the tenants, have filed this revision petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as 'the Act') for setting aside the order dated 5.11.2004 passed by the Rent Controller vide which their defence has been struck off on the ground of non-filing of the written statement.
(2.) IN the case, the respondent-landlord filed an ejectment application against the petitioners under Section 13 of the Act for their ejectment from the demised premises, which is a shop. On notice issued to the petitioners, they appeared before the Rent Controller on 28.7.2003 for filing the written statement. On the said date, the written statement was not filed and the case was adjourned for 10.9.20903 subject to last opportunity for filing the written statement. On 10.9.2003, the reply was filed. However, an application was filed by the respondent-landlord for striking off the defence of the petitioners under Order 8, Rule 1 C.P.C. as the petitioners did not file the reply within 90 days. The said application was allowed and the defence of the petitioners was struck off while observing that under the provisions of Order 8, Rule 1 C.P.C. the time for filing the written statement after 30 days cannot be extended beyond 90 days from the date of service of summons and the said provision is mandatory, hence, the defence of the petitioners was liable to be struck off. Counsel for the petitioners submitted that in the case on 12.5.2003, after appearance of the petitioners, the case was adjourned by the Rent Controller for 28.7.2003 and on that date, the case was adjourned for 10.9.2003, the written statement was filed. Therefore, the case of the petitioners is covered by the proviso to Rule 1 which provides that where the defendant has failed to file the written statement within a period of 30 days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing. Learned counsel for the petitioners submitted that when the case was adjourned for filing the written statement on 28.7.2003 for 10.9.2003, which was a date beyond 90 days, the respondent-landlord should have objected that the petitioners cannot be given the time beyond 90 days, but no such objection was raised. In these circumstances, when the written statement was filed as per the direction of the Court on the extended date fixed by it, the defence of the petitioners should not have been struck off. Counsel for the petitioners further relied upon the decisions of the Hon'ble Apex Court in Smt. Rani Kusum v. Smt. Kanchan Devi and others, 2005(3) RCR(Civil) 727 : A.I.R. 2005 S.C. 3304 : 2005(6) S.C.C. 705 and Kailash v. Nankhu and others, 2005(2) RCR(Civil) 379 : J.T. 2005(4) S.C. 204, where the provisions of Order 8, Rule 1 C.P.C. have been held to be directory and not mandatory.
(3.) COUNSEL for the respondent has not seriously opposed the revision petition filed by the petitioners, particularly keeping in view the latest judgments of the Hon'ble Apex Court in Smt. Rani Kusum (supra) and Kailash (supra).;