Satish Kumar Mittal, J. - (1.) DEFENDANT Anil Handa has filed this petition under Article 227 of the Constitution of India for setting aside the order dated 17.5.2005, passed by the trial court, whereby his defence has been struck off on account of non -filing of written statement within three months, as provided under Order 8 Rule 1 of the Civil Procedure Code (hereinafter referred to as 'the Code').
(2.) THE plaintiff filed suit under Order 37 of the Code for recovery of Rs. 1,20,400/ -on the basis of cheque. The defendant was granted leave to defend the suit on 17.2.2005 and the case was fixed for 1.4.2005 for filing written statement. However, the written statement was not filed on that date and thereafter, three more opportunities were granted to the defendant to file written statement on 25.4.2005, 14.5.2005 and 17.5.2005, but he did not file written statement, which led to passing of the impugned order. The plea taken by the petitioner is that during the aforesaid period, his real sister remained seriously ill, who subsequently died on 19.6.2005. He remained busy for her treatment, therefore written statement could not be filed within 90 days. The request of the petitioner for further time was also not accepted.
(3.) COUNSEL for the petitioner, while relying upon a decision of this Court in State of Haryana and Ors. v. , submits that the provision of Order 8 Rule 1 of the Code is directory and not mandatory in nature. He further submits that the rules and procedure are handmaid of justice to enhance the sane and not to subvert it. Learned Counsel submits that only one opportunity may be granted to the petitioner -defendant to file written statement, subject to payment of costs.;