JUDGMENT :

JASGURPREET SINGH PURI, J.

CM No.2261-CII of 2021

1. Learned counsel for the petitioner has sought for permission to place on record the Zimni orders as Annexure P-6 for just adjudication of the case.

2. Present application is allowed. Zimni orders (Annexure P-6) is directed to be taken on record.

CR No.305 of 2021

3. Present petition has been filed under Article 227 of Constitution of India seeking setting aside the order dated 02.02.2021(Annexure P-5) whereby an application filed by the plaintiff-petitioner seeking striking off defence of the defendant-respondents has not been allowed by the learned Civil Judge Junior Division Samrala.

4. Petitioner-plaintiff had filed civil suit for declaration against the defendant-respondents on 30.07.2020 and notice of the suit alongwith application for stay was issued to the defendants on 07.08.2020. Thereafter, on 07.08.2020 one of the defendants namely, Paramjit Kaur appeared in person and the matter was adjourned for 04.09.2020 for filing power of attorney and written statement on behalf of defendants. Defendant No.2 also appeared as power of attorney of defendant No.1. Thereafter, the matter was adjourned from time to time in view of the Covid-19 epidemic and in the meanwhile, the petitioner-plaintiff filed an application under Order 8 Rule 1 CPC for striking off the defence on the ground that the defendants have not filed their written statement within a period of 90 days as envisaged under Order 8 Rule 1 CPC. However, the said application was dismissed by the learned Civil Judge Junior Division, Samrala on 02.02.2021 on the ground that although the suit was filed on 30.07.2020 and defendant No.2 had appeared on 07.08.2020 in person, the matter was adjourned for filing power of attorney and written statement of the defendants. Thereafter, on a number of dates the matter was adjourned and on 18.12.2020 power of attorney was filed on behalf of the defendants by the learned counsel and on 15.01.2021 reply to the present application was also filed by the defendants. Learned Civil Judge Junior Division, Samrala had also observed that perusal of zimni orders from dated 04.09.2020 to 05.11.2020 clearly show that file was taken up during restricted court working situations due to Covid-19 epidemic and to protect the interest of the parties in this pandemic circumstances was the foremost duty of the Court. Furthermore, under Order 8 Rule 1 CPC although the maximum period for filing written statement is prescribed as 90 days but the same provision was not mandatory in nature but directory. Therefore, learned Civil Judge Junior Division, Samrala considering the totality of circumstances of the case directed that in order to protect the interest of the parties and in the interest of justice and equity one opportunity be granted to the defendants to file written statement and as such the application was disposed of with a direction to file written statement positively on 09.02.2021 failing which no further opportunity would be granted.

5. A perusal of zimni order dated 09.02.2021 would show that when the matter was taken up for hearing it was again adjourned in view of the orders passed by the learned District Judge, Ludhiana in view of the prevailing Covid-19 pandemic situation and the order also shows that the matter was fixed for filing replication. Furthermore, order dated 19.02.2021 would also show that the matter was fixed for filing replication which would mean that written statement has already been filed by the defendants in pursuance of the impugned order (Annexure P-5).

6. Learned counsel for the petitioner has submitted that application filed by the petitioner ought to have been allowed in view of the provisions contained under Order 8 Rule 1 CPC and further time could have been granted to the defendants to file written statement.

7. Provisions of Order 8 Rule 1 are reproduced as under:-

“1.Written Statement-- The defendant shall, within thirty days from the date of service of summo