M.M.Kumar, J. - (1.) This petition filed under Article 227 of the Constitution prays for setting aside the order dated 28.7.2006 passed by the Civil Judge (Jr.Division) , Nakodar striking off the defence of the defendant-petitioner on the ground that from the date of appearance a period of 90 days had expired. It is appropriate to mention that the plaintiff- respondent has filed a suit for permanent injunction restraining the defendant-petitioners from interfering in his exclusive possession and to dispossess him forcibly as share holder/ owner of the land as described in the head note of the plaint. Notice of the civil suit was issued and after service counsel for the defendant- petitioner appeared on 3.2.2004. On 28.7.2004 when the matter came up for consideration, the Civil Judge refused to permit the defendant-petitioners to file the written statement and also reply to the stay application on the ground that a period of 90 days as provided by Order VIII Rule 1 of the Code of Civil Procedure, 1908 has expired. Hence, the instant petition. When the revision petition was admitted proceedings before the trial Court were stayed on 28.2.2005 on account of the fact that reference has been made to the larger Bench in CR No.1148 of 2005.
(2.) Learned counsel for the defendant- petitioner has placed on record a copy of the order dated 20.5.2005 passed by a Division Bench answering the reference in favour of the defendant-petitioner after noticing the judgement of the Supreme Court in the case of Kailash v. Nanhku and others JT 2005(4) SC 204. The Division Bench has observed as under: "At the time of hearing, learned counsel for the parties have brought to CR 1107 of 2005 .2. our notice a direct judgement of the Supreme Court in the case of Kailash v. Nanhku and others JT 2005(4) SC 204 on this issue. In the aforementioned judgement the Supreme Court has taken the view that provisions of Order VIII Rule 1 have to be regarded as directory in nature and it has been left to the discretion of the trial Court to pass appropriate orders granting permission to file the written statement after the expiry of 90 days by examining facts of each case."
(3.) The Division Bench extracted the operative part of the view taken by the Supreme Court which may be read as part of this order.;