Dharam Pal vs Parasram and Others

Ram Chand Gupta, J.—The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 28.2.2011, passed by learned Additional Civil Judge, Senior Division, Faridabad, Annexure P1, vide which defence of Petitioner has been struck off in Civil Suit No. 558/10 for non-filing the written statement by him.

I have heard learned Counsel for the Petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court.

Admittedly summons in this case were received by Petitioner on 18.11.2010. Appearance was put on his behalf through counsel on 20.11.2010. Written statement was not filed within prescribed period of 90 days and hence, his defence was ordered to be struck off vide impugned order dated 28.2.2011.

It has been contended by learned Counsel for the Petitioner that he has given all the documents and instructions to his counsel to file the written statement and, however, due to negligence of counsel, written statement could not be filed. Hence, it is contended that Petitioner could not be made to suffer due to fault of his counsel. It is also contended that moreover on one of the dates, it was declared as a holiday and only two dates were given for filing written statement. It is further contended that moreover no proceeding has been conducted in this case and the case is fixed for service of remaining Defendants and now the case is fixed for 5.8.2011 for service of remaining Defendants.

Though no sufficient cause has been made out by the Petitioner for not filing the written statement within 90 days, however, in view of the fact that the case is being adjourned for service of remaining Defendants and the same is fixed for 5.8.2011 for service of remaining Defendants only, one opportunity can be granted to him to file written statement and the other party can be compensated by way of cost.

Hence, in view of these facts, the present revision petition is accepted. Impugned order is set aside. Learned trial Court is directed to grant one opportunity to the Petitioner to file written statement subject to payment of Rs. 5,000/- as cost, which shall be a condition precedent.