Gurmail Singh vs Raghbir Singh

Hemant Gupta, J.—The defendant is in revision petition aggrieved against the order passed by the learned trial Court on 10.11.2004 whereby the defence of the defendant has been struck off for non-payment of costs of Rs.250/-.

The learned counsel for the petitioner has drawn the attention of the Court to the order passed on 28.9.2004 whereby case was adjourned for filing of the written statement subject to payment of Rs. 250/-. On the next date, the written statement was filed and the case was adjourned on 10.11.2004 for filing of the replication. The said order was passed in the presence of the counsel for the parties. Then only thereafter, the plaintiff moved an application on 10.11.2004 for striking off the defence of the petitioner without filing the replication.

The learned counsel for the petitioner has relied upon the Full Bench judgment of this Court reported as Prem Sugar and Ors. v. Phul Chand and Ors. (1983) 85 P.L.R. 797, wherein it has been held that on the date next following the date of the order of the payment of costs, the issue is not raised by either of the parties or taken notice of by the Court, it cannot be said that thereafter, on all or any subsequent date the same can be resuscitated or that Section 35-B would continue to apply all its rigour thereafter as well.

In view of such judgment of the Full Bench of this Court, the order passed by the trial Court is patently illegal. Thus, the said order is set aside.