Municipal Corporation, Gurgaon vs Rakesh Aggarwal and others

Vijender Singh Malik, J.—Municipal Corporation, Gurgaon, defendant No.1, has brought this revision petition under the provisions of Article 227 of the Constitution of India for setting aside the order dated 18.7.2011 (Annexure P1) passed by learned Civil Judge (Senior Division), Gurgaon, whereby the defence of the petitioner and defendant No.2 has been struck off.

Rakesh Aggarwal, respondent No.1, filed a suit for permanent injunction for restraining the defendants from interfering in his possession over the suit property. The defendants could not file the written statement within the stipulated period of 90 days. Since costs, subject to payment of which opportunity was given to file written statement to the defendants, was also not paid and Learned Counsel for defendants No.1 and 2 had declared in the open court that they had no objection if the defence of defendants No. 1 and 2 was ordered to be struck off, learned trial court took the step of striking off the defence of defendants No.1 and 2. Now, one of them, i.e., defendant No.1 has brought this revision petition and has challenged the order dated 18.7.2011.

I have heard Mr. Gaurav Singh Hooda, Learned Counsel for the petitioner and have gone through the record carefully.

Learned trial court had noticed vide the impugned order the fact that more than 90 days had already expired from the date of putting in appearance by defendants No.1 and 2 in the suit and written statement was not filed. It also found that costs in a sum of Rs.500/- , subject to payment of which the opportunity to file written statement was granted, was not paid. With these two facts before it, learned trial court has ordered the defence of defendants No.1 and 2 to be struck off.

Learned Counsel for the petitioner has submitted that there are two different departments and time was taken by the two departments in preparing the written statement. He has further submitted that the petitioner and the other respondents would be seriously prejudiced if this order is not set aside.

The opportunity for 18.7.2011 to defendants No. 1 and 2 was granted for filing written statement subject to payment of Rs.500/- as costs. The costs had been imposed under the provisions of Section 35-B of CPC and under the said provision, payment of such costs on the date next following the date of such order shall be a condition precedent to the further prosecution of the defence by the defendant where the defendant was ordered to pay such costs. This is a mandatory provision. There can be no justification for seeking further adjournment without payment of costs. However, the matter went a step ahead in this case, when Learned Counsel for defendants No. 1 and 2 instead of asking for an adjournment had rather declared in the court that they had no objection if the defence of defendants No.1 and 2 was struck off. In the face of this situation, learned trial court had no other option but to strike off the defence of defendants No.1 and 2.

Defendant No.1 is Municipal Corporation, Gurgaon, whereas defendant No.2 is D.T.P.Haryana Urban Develpment Authority, Gurgaon The two departments cannot be said to have any common record or any common defence to be put up. They were even represented by different advocates. So, the delay in bringing the written statement on their behalf cannot be held justified. At least in a case where the costs, subject to payment of which adjournment had been granted for filing the written statement, was not paid and the counsel for defendants No.1 and 2 had declared openly in the court that they had no objection if the defence of defendants No.1 and 2 was struck off, the impugned order cannot be held unjustified or illegal in any manner.

For the aforesaid reasons, I find no fault with the impugned order. Consequently, the revision petition is dismissed.