The delay in filing the written statement could be condoned subject to payment of costs, as the period provided under Order 8 Rule 1 CPC is procedural and not part of substantive law.

VIKAS SURI, J.

1. This is a civil revision petition under Article 227 of the Constitution of India praying for setting aside the order dated 07.10.2022 (Annexure P-2) whereby defence of defendant-petitioner Nos.1 to 5 was struck off.

2. Learned counsel for the petitioner would submit that the respondent had filed a suit for declaration challenging rejection of his technical bid regarding work namely “Bridge over Swan Khad on Kotla Amroh road along with road SH C/o 2 Nos. bridges” and relief of mandatory injunction directing the petitioners to pay the mesne profits at the rate of 20% against estimate cost of work. On receipt of notice of the said suit, the petitioners put in appearance on 31.07.2019 and the matter was adjourned to 30.08.2019. On the said date, the Additional Public Prosecutor (APP) for the State filed memorandum of appearance on behalf of the defendant-petitioners and sought time to file written statement and reply to the stay application. The case was then posted for 16.09.2019. On the said date, an application under Order 7 Rule 11 CPC seeking rejection of the plaint was filed by the petitioners through the state counsel. Notice of the said application was taken and the case was adjourned to 04.10.2019 for reply and consideration on the same. The said application was finally disposed of vide order dated 31.05.2022.

3. It is pleaded that from 04.10.2019 till 31.05.2022, i.e. the date on which the application under Order 7 Rule 11 CPC was declined, the case remained pending due to various reasons, namely filing of reply to the said application, consideration on the same, restricted functioning due to Covid-19 pandemic etc. Vide order dated 31.05.2022, after the application seeking rejection of the plaint was dismissed by a separate detailed order, the case was adjourned to 01.08.2022 for filing written statement and reply to the stay application by the defendant-petitioners. On the next date, the case was adjourned to 08.09.2022. Thereafter, another last opportunity was given for the same purpose and the matter was adjourned to 07.10.2022, on which date the impugned order Annexure P-2 was passed, whereby defence of the defendant-petitioner No.5 was struck off.

4. Learned counsel for the petitioners would contend that the petitioners being the State Government and its functionaries are defending litigation in a different State and are dependent on the written communications received from the office of the Additional District Attorney at Amritsar. The petitioners had taken necessary steps and had also prepared the written statement but the same could not be filed on 08.09.2022, on account of some corrections to be carried out in the same on the advise of Sh. Rupinder Singh, ADA. It is also submitted that the petitioners are a public department and was engaged by the Election Commission of India on election duty in the State of Himachal Pradesh. They were on election duty till 12.11.2022, by which date they were informed that defence has been struck off vide order dated 17.10.2022. Counsel would also refer to the communications dated 27.08.2022 (Annexure P-5), 02.09.2005 (Annexure P-4), 04.10.2022 (Annexure P-6), 18.10.2022 (Annexure P-7), 09.11.2022 (Annexure P-8) and 10.11.2022 (Annexure P-9) to demonstrate that the petitioner were actively pursuing the matter. Learned counsel for the petitioners would further contend that the written statement is ready and in case one opportunity is granted to them, he would file the written statement on the very first opportunity granted by the Court.

5. I have heard the learned counsel for the petitioners and with his able assistance perused the paper-book.

6. In view of the order proposed to be passed, notice is not being issued to the respondent as it would delay the proceedings and entail additional expense to the respondent.

7. In the present case, it is pointed out that after the application seeking rejection of the plaint was dismissed vide order dated 31.05.2022, the defendan