The party should not suffer for the negligence of the counsel, and the provisions of Order 8, Rule 1 CPC are not mandatory, allowing for an extension of time to file the written statement.

Darshan Singh, J.

The present revision petition has been preferred against the order dated 27.11.2015 passed by the learned Civil Judge (Junior Division), Panchkula, vide which the order passed by the learned trial Court dated 06.12.2011 striking off the defence of the petitioner-defendant has been upheld.

2. Learned counsel for the petitioner contended that due to the negligence of the counsel for the petitioner in the trial Court, the written statement could not be filed within 90 days. The petitioner is an innocent lady. She engaged Sh.Suresh Rohila, Advocate and the entire facts were disclosed to him. He got her signatures on the papers to file the written statement. But, the written statement was not filed by the counsel within 90 days and the defence of the petitioner was struck off vide impugned order dated 06.12.2011. He contended that the said order was challenged in the revision before this Court. But, the said revision was dismissed as withdrawn with liberty to approach the learned trial Court to recall the order. The application filed by the petitioner to recall the order has also been dismissed by the learned trial Court vide impugned order dated 27.11.2015. He contended that great prejudice has been caused to the petitioner due to the impugned order. He contended that the provisions under Order 8, Rule 1 of Code of Civil Procedure, 1908 (for short CPC) are not mandatory. Thus, he pleaded that the petitioner should be granted one opportunity to file the written statement.

3. On the other hand, learned counsel for the respondent contended that number of opportunities were granted to the petitioner to file the written statement. But, when the written statement was not filed, her defence was struck off. He further contended that the revision filed by the petitioner against that order was also got dismissed as withdrawn. So, that order has attained finality and cannot be re-agitated in the present revision petition. He further contended that the impugned order was passed about five years back. The disposal of the suit has already been delayed. If, the petitioner is allowed to file the written statement, it will further delay the disposal of the case.

4. I have duly considered the aforesaid contentions.

5. There is no denial to the fact that the valuable rights of the petitioner are involved in the present suit as the respondent-plaintiff has filed the suit for physical possession of the land measuring about 160 sq. yards. The interest of justice requires that the fair opportunity should be granted to the petitioner to present her case. From the signatures of the petitioner on the affidavit, it appears that she is semi-literate lady. It has been specifically mentioned in the grounds of revision that the entire facts were disclosed to her counsel, who even got her signatures on the papers, but did not file the written statement within time. It is well settled principle of law that the party should not made to suffer for the negligence of the counsel.

6. Moreover, the provisions of Order 8, Rule 1 CPC, prescribing the time limit to file the written statement are not mandatory. The Court may extend time for filing the written statement even beyond that period in order to avoid hardship and injustice to the party concerned. Reference can be made to cases Kailash v. Nanhku and others,2005(2) RCR (Civil) 379 and Mohammed Yusuf v. Faij Mohammad and others, 2009(1) RCR (Civil) 633.

7. I do not find any substance in the plea raised by learned counsel for the respondent that the order dated 06.12.2011 passed by the learned trial Court has attained finality. The earlier revision petition bearing CR No. 4415 of 2012 was dismissed as withdrawn as the petitioner has sought permission to approach the learned trial Court. Thereafter, the petitioner moved the application to the trial Court for recalling the order and the said application has been dismissed by the learned Civil Judge, Panchkula vide impugned order dated 27.11.2015. S