WPMS/157/2005 of PARMANAND PRAKASH PATHAK Vs CIVIL JUDGE S.D. HARIDWAR AND ANOTHER on 30 December 2011

MCC No. 1030 of 2011 In WPMS No. 157 of 2005 Hon’ble Tarun Agarwala, J.

Mr. Siddhartha Singh, Advocate for the

petitioner.

Mr. Tapan Singh, Advocate on behalf of Mr. Lok Pal Singh, Advocate for the respondent.

Cause shown is sufficient. The restoration application is allowed. Order dated 22.12.2011 is recalled and the petition is restored to its original number.

A suit for recovery of money was filed. The defendant was served with the summons and adopted all kinds of delaying tactics and chose not to file any written statement. The defendant filed an application under Order 7 Rule 11 of the C.P.C. and, thereafter, filed other objections and, eventually, when all things failed then filed written statement after a lapse of one year. The trial court kept the written statement on record but further held that the same will not be considered. The defendant, being aggrieved by the said order, has filed the present writ petition.

Having heard the learned counsel for the parties, the Court is of the opinion that the trial court was not justified in holding that the written statement will not be considered. If it is kept on record, the same is liable to be considered. However, the court finds that dilatory tactics was adopted by the defendant in filing the written statement within the stipulated period as provided under Order 8 Rule 11 since there has been a delay of more than one year and the recovery suit has remained pending coupled with the fact that the provisions of Order 8 Rule 1 are directory but at the same time the same provisions should not be misused. The Court is of the opinion that in the interest of justice, written statement will be kept on record and will be considered as evidentiary value provided the defendant pays to the plaintiff a sum of Rs.10,000/-.

In the light of the aforesaid, the impugned order cannot be sustained and is set aside. The writ petition is allowed. The cost as stipulated aforesaid will be deposited by the defendant before the trial court within four weeks from today. The cost so deposited can be withdrawn by the plaintiff.

Certified copy of the order shall be sent by the Registry to the court below within ten days from today for necessary information and action.

Dated 30.12.2011 Shiv

(Tarun Agarwala, J.)