The amended provision allowing 120 days to file a written statement under the CPC is applicable, and dismissal on procedural grounds without considering such amendment is unreasonable.

JUDGMENT :

Wasim Sadiq Nargal, J.

1. Heard learned counsel for the parties and perused the record.

2. Admit.

3. Caveat No. 228/2023 shall stand discharged.

4. With the consent of learned counsel for the parties, the case is taken up for final disposal.

5. Through the medium of the present petition, the petitioner has invoked the jurisdiction of this court under Article 227 of the Constitution of India, assailing the order dated 25.01.2023 passed by the court of learned Sub-Registrar, Jammu, whereby the right of the petitioner to file the written statement has been closed and the case has been put up for the evidence of the respondent/plaintiff.

6. Learned counsel for the petitioner has further submitted that the respondent (plaintiff therein) filed a suit for ejectment, in order to evict the defendant (petitioner herein) from shop situated adjoining the gate of H. No. 312-A, Gandhi Nagar, Jammu known as Sharma Men's Wear Shop and the aforesaid shop is bounded as under:

East: Bounded by House of plaintiff.

West: Bounded by Main Road Apsara Road.

North: Bounded by Plot 311-A.

South: Bounded by Gate of plaintiff not even up to 8 ft. with a direction to the defendant to hand over the vacant possession of the shop to the plaintiff.

7. Further case of the petitioner is that petitioner is running the shop by the name and style of Sharma Men's Wear which is the sole source of earning not only for the petitioner but other tailors too, by providing the services of tailoring to their customers. It is further pleaded by the petitioner that the respondent is a Retired Professor of English from University of Jammu and his wife is also a Retired Professor from University of Jammu.

8. Further case of the petitioner is that he has received the summon in the aforesaid suit filed by the respondent on 20.05.2022 and the petitioner caused his appearance on 27.05.2022 and on the same date the learned counsel appearing for the petitioner filed Vakalatnama and received a copy of the plaint. That the written statement in the aforesaid suit was filed by the petitioner on 06.09.2022, meaning thereby that the written statement was filed by the petitioner after more than 90 days, more specifically on 101st day.

9. Learned counsel for the petitioner further submits that the petitioner also moved an application for condonation of delay on 09.11.2022 in filing the written statement after conclusion of the arguments for taking on record the written statement.

10. The further case of the petitioner is that the court below struck off the defence of the petitioner (defendant) without considering the provisions of law, proviso to Order VIII Rule 1 of the CPC was substituted through the medium of S.O. 1123(E) of 2020, dated 18.03.2020 which is reproduced hereunder:

“Provided that where the defendant fails to file the written statement [with] the said period of 30 days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record.”

11. Learned counsel for the petitioner relied upon the judgment of Hon'ble Supreme Court of India in case titled Bharat Kalra v. Raj Kishan Chabra in which, it is