In CR-4445-2019 (O&M)-PUNJ HC- Provisions of Order VIII Rule 1 CPC are not mandatory in nature, reaffirms P&H HC
Justice Alka Sarin [31-01-2023]

Read Order: Mander Singh v. Punjab State Warehousing Corporation and Others 

Monika Rahar

Chandigarh, February 1, 2023:  While dismissing a Revision Petition, the Punjab and Haryana High Court has relied upon the judgment of the Top Court in Bharat Kalra Vs.  Raj Kishan Chabra wherein after referring to the judgment in Kailash v. Nankhu & Ors. it was opined that the provisions of Order VIII Rule 1 CPC are not mandatory in nature.

In this case before the Bench of Justice Alka Sarin, the petitioner challenged the order of the Trial Court vide which the application filed by the plaintiff-petitioner  for striking off the defence of the defendant-respondents, was dismissed.

The suit was filed by the plaintiff-petitioner in the year 2018, thereafter, despite the  matter being adjourned, the written statement was filed after delay. On the same day, an application was filed by the plaintiff-petitioner for striking off the defence of the defendant-respondents and returning the written statement on the ground that the same was not filed despite the expiry of 90 days from the date of issue of notice.

The counsel for the plaintiff-petitioner contended that earlier the defendant-respondents were proceeded against ex-parte and the said order was set aside, subject to payment of Rs. 200 as costs. It was further the contention of the counsel that the provisions of Order VIII Rule 1 CPC are mandatory in nature. 

Per Contra, the counsel for the defendant-respondent contended that the provisions of Order VIII Rule 1 CPC were held directory in nature in the case of non-commercial suits. 

Regarding the argument of the counsel for the plaintiff-petitioner, the Court observed, 

"Thereafter, in the case of Bharat Kalra Vs.  Raj Kishan Chabra [2022 SCC OnLine SC 613] also it has been held that the provisions of Order VIII Rule 1 CPC are not mandatory in nature relying upon the judgment of the Supreme Court in Kailash Vs. Nankhu & Ors. [(2005) 4 SCC 480]".

As far as the facts of the case are concerned the Bench noted that in this case, via the impugned order it was noticed that the written statement was already filed by the defendant-respondents in March 2019 and on the same day the application was filed by the plaintiff-petitioner for striking off the defence and returning the written statement on the ground that the written statement was not filed within a period of 30 days.