The main legal point established is the court's discretion to grant one last effective opportunity to file the written statement, subject to the payment of costs, to avoid miscarriage of justice.

SANJAY VASHISTH, J.

1. By way of present revision petition, petitioner – Ishwar Singh (defendant No.1), has challenged the order dated 17.03.2023 (Annexure P-2) (in CS-1892-2022), passed by Ld. Civil Judge (Junior Division), Panipat, whereby, defence of defendant No.1, has been struck off, and he was precluded from filing written statement and reply to the stay application.

2. Learned counsel for the petitioner (defendant No.1) while referring to the zimni orders reproduced in the revision petition, submits that on 03.11.2022, suit filed by the plaintiff was registered and notice to the defendants was issued for 22.11.2022. Accordingly, on 22.11.2022, defendant No.1 appeared before the Court and time was granted for filing written statement and reply to the stay application. Service upon defendant No.2, was not complete, so fresh notice was issued. Thus, proceedings were adjourned to 08.02.2023.

3. On 08.02.2023, again service upon defendant No.2 was incomplete, and on request, time was granted to defendant No.1 to file written statement, and reply to the stay application. Proceedings were again adjourned for 17.03.2023. Thus, 17.03.2023, was the third appearance of defendant No.1, and even on the said date, he could not file written statement and reply to the stay application. Thereupon, impugned order of striking off the defense of defendant No.1, was passed by the Trial Court.

It is worth noticing that despite incomplete service of defendant No.2, again fresh notice was issued for 19.09.2023, subject to necessary compliance.

4. Therefore, learned counsel for the petitioner requests that if one opportunity is granted to the petitioner/defendant No.1, to file his written statement and reply to the stay application, subject to the payment of some costs, the requisite written statement and reply to the stay application shall be filed by the petitioner/defendant No.1 within the granted time, and that would be required by the Trial Court also, while looking at the pleadings/stand of the respective parties, for the purpose of framing of the issues.

5. Learned counsel for the petitioner/defendant No.1 also relies upon the order dated 20.05.2022, passed by the Coordinate Bench of this Court in CR-1660-2020, titled as, “Paro and others vs. Mahindo” wherein, in the similar circumstances, to avoid miscarriage of justice, the order of striking off defence was set-aside, and opportunity of filing of written statement was granted. Relevant part of the order dated 20.05.2022, says as under:-

“ The provisions of Order 8 Rule 1 of the CPC no doubt are directory in nature, however, at the same time the Courts must exercise their discretion to condone the delay, if any, in filing the written statement after exercising due circumspection and in case there appears to be an attempt on the part of the defendant to engage in dilatory tactics, the Courts should nip the same unhesitatingly.

Adverting to the case in hand, the petitioners were granted four opportunities to file their written statement, however, they failed to do so.

Be that as it may, if the petitioners are not granted one more opportunity to file their written statement, they would suffer irreparable loss which in turn would result in miscarriage of justice. Therefore, for just and proper adjudication of the case, this Court deems it appropriate to grant one last effective opportunity to the petitioners to file their written statement.

In the wake of the above, without issuing notice to the respondent, to avoid any further delay as well as expenses which she shall have to incur to defend these proceedings, the impugned order dated 21.11.2019, is set aside. The instant revision petition is allowed in the following terms:-

1. The petitioners are granted one last effective opportunity to file their written statement.

2. In the event of default by the petitioners, the case shall not be adjourned any further for filing of their written statement and consequently their defence shall be deemed to be str