JUDGMENT V.K. Gupta, CJ. (Oral): Vide the impugned order dated 11th May, 2004, the learned Court of Civil Judge (Junior Division) (Court No. 3), Shimla has struck off the defence of the petitioner-defendant by exercising its power/jurisdiction in terms of Order 8 Rule 1 of the Code of Civil Procedure since, as per the contents of the impugned order, the petitioner-defendant having been served with the summons for appearance on 14th January, 2004, he filed the written statement on 23rd April, 2004, i.e. beyond the period of 90 days, as prescribed in Order 8 Rule 1, Order 8 Rule 1 reads as under :- "1. Written statement. - The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defense: Provided that where the defendant fails to file the written statement within the said period of thirty 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, but which shall not be later than ninety days from the date of service of summons."

2. Rule 10 of Order 8 clearly stipulates that where any party from whom a written statement is required in terms of Rule 1 fails to present the same within the time permitted, the court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit. Rule 10 is reproduced hereinafter for ready reference, which reads thus:- "10. Procedure when party fails to present written statement called for by Court. - Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn UP"

3. It is apparently in purported exercise of the power under Rule 10 (supra) that the learned trial court has struck off the defence of the petitioner-defendant because according to it the written statement was not filed within the outer limit of 90 days from the date of service of summons upon him.

4. The learned trial Court in the course of the impugned order has observed that the service of summons was effected upon the petitioner-defendant on 14th January, 2004. I have seen the summons in original from the record of the trial Court and find that it was issued on 14th January, 2004 under the signatures of Superintendent Grade- 11 in the office of the Civil Judge (Junior Division) (Court No. 3), Shimla. Apparently bearing despatch No. 78 the document seems to have left the office of Superintendent, Grade-ll on 15th January, 2004. On the back of the summons, the petitioner-defendant has put his signatures and underneath the signature is mentioned the date which is 19th January, 2004. One Ranjit Singh, apparently a Process-Server has given his report on the back of the summons to the effect of his having completed the task of effecting the service upon the petitioner-defendant and the date underneath the signatures of Ranjit Singh also is 19th January, 2004. It, therefore, clearly transpires, beyond any iota of doubt that the service upon the petitioner was effected only on 19th January, 2004 and, therefore, the learned trial Court has wrongly and incorrectly mentioned the date of service as being 14th January, 2004. As already noticed, since the summons left the office of the Superintendent Grade II only on 15th January, 2004 as it was despatched on that date vide despatch No. 78, there is no question of the service having been effected on 14th January, 2004. This is one aspect of the matter.

5. By issuing the summons on 14th January, 2004 and dispatching it on 15th January, 2004, the learned trial Court called the petitioner-defendant to appear in the Court on 21st April, 2004, the date it had fixed in the suit for the appearance of the parties. By any calculation, starting from 14th Janua

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