Mr. Rajesh Bindal, J.:- Challenge in the present petition is to the order dated 30.4.2014 passed by the learned court below, whereby the defence of the petitioners/defendants No.1 and 2 was struck off on account of non-filing of written statement.

2. In the case in hand, respondent No.1/plaintiff filed a suit for possession on 5.11.2012 claiming himself to be co-sharer in the property in dispute. After service, the petitioners had put in appearance on 22.8.2013 and thereafter, sought adjournment for filing written statement. Despite number of opportunities granted, written statement was not filed by the petitioners. As defence of the petitioners was struck off vide impugned order dated 30.4.2014, the same has been challenged in the present petition.

3. Learned counsel for the petitioners submitted that on account of unavoidable circumstances, the petitioners could not file the written statement. In fact, respondent No.1/plaintiff is guilty for delaying the process of court. He had not been able to serve the defendants. Even after the defence of the petitioners was struck off, respondent No.1/plaintiff has not led any evidence despite availing seven opportunities. The submission of learned counsel for the petitioners is that considering the stage of the suit, the petitioners may be permitted to file written statement, may be subject to payment of cost.

4. On the other hand, learned counsel for respondent No.1 submitted that in the case in hand, the petitioners are encroachers on the part of the land. To retain their possession, initially they were avoiding service of summons. The service had to be effected by affixation. On 22.8.2013, after putting in appearance, the petitioners despite availing of number of opportunities, did not file their written statement. Even the cost imposed by the court was also not paid. Under these circumstances, there is no error in the order passed by the learned court below. The petition deserves to be dismissed.

5. Heard learned counsel for the parties and perused the paper book.

6. Respondent No.1/plaintiff filed a civil suit on 5.11.2012. A perusal of the order passed by the learned court below on 17.7.2013 shows that the summons issued for service of the petitioners/defendants No.1 and 2 were received back unserved. Fresh summons were issued for service through Munadi and by way of affixation for 22.8.2013. On 22.8.2013, the petitioners had put in appearance and requested for adjournment to file written statement. Defendant No.3 was already ex-parte. The case was adjourned to 11.10.2013. Neither on that day nor on the next date of hearing i.e. 20.12.2013, the written statement was filed. Though even the period of 90 days was over by that time on 21.12.2013, but still the court granted time to the petitioners to file written statement subject to payment of Rs. 300/- as cost. As even on that day when the written statement was not filed, the learned court below passed the following order:-

“Written statement on behalf of defendants not filed. No further opportunity is justified to adjourn the case for filing of written statement on behalf of defendants, as number of opportunities have already been given. Therefore, defence of defendants No.1 and 2 is hereby struck off. To come up on 16.7.2014 for evidence of the plaintiff.”

7. The question is as to whether under these circumstances, the petitioners deserve to be granted any further opportunity for filing of written statement while setting aside the order passed by the learned court below striking off their defence on account of non-filing of written statement.

8. Comprehensive amendments were made in CPC in the year 2002 in Order VIII Rule 1 CPC. The relevant provision is reproduced below:- “

Written Statement:- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:

Provided that where the defendant fails to file the written statement within the said period of thirty