Partly allowed

Baljit Singh v. Sadhu Singh & Ors.

Punjab & Haryana HC24 Aug 2011CR/5072/2011

Case brief

AI extract

What is this about?

In a civil revision invoking Article 227, the High Court set aside the trial court's order striking off the defendant's defence for failure to file a written statement. The Court directed the trial court to grant another opportunity to file the statement subject to payment of costs.

What did the court decide?

Impugned orders set aside; trial court directed to grant one more opportunity to file written statement subject to payment of Rs.5,000 costs.

Baljit Singh Vs Sadhu Singh & Ors. — Property and Title | Punjab & Haryana HC (2011)

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Civil Revision No.5072 OF 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No.5072 OF 2011

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Date of Decision:24.08.2011

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Baljit Singh ......Petitioner

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Versus

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Sadhu Singh and others .....Respondents

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CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.

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Present: Mr.Ashish Gupta, Advocate, for the petitioner.

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MEHINDER SINGH SULLAR, J.(oral)

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The epitome of the facts, relevant for disposal of the present revision petition and emanating from the record is, that Sadhu Singh, Jalour Singh and Baldev Singh sons of Bachittar Singh-respondent Nos.1 to 3-plaintiffs(for brevity “the plaintiffs”) filed the suit against Baljit Singh son of Mehar Singh-petitionerdefendant No.1 and Gurdit Singh-proforma respondent No.4-defendant No.2(for short “the defendants”) for a decree of possession by way of partition of half share of the property in dispute.

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As, the defendants did not file the written statement, therefore, the trial Court struck off their defence, by means of impugned order dated 27.08.2010 (Annexure P-2), which is, as under:-

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“Written statement again not filed. Proxy counsel for the defendant prays for adjournment, which is opposed. Heard. From the perusal of the file it has been revealed that defendant in the present case appeared through his counsel Sh.B.D.Kumar, Advocate on 28.5.2010 and he has failed to file written statement till today. Requisite period as per CPC has been lapsed and defendant has failed to file written statement within stipulated period. As such defence of the defendant stands struck off. Now file be put up on 3.11.2010 for evidence of the plaintiff.”

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Civil Revision No.5072 OF 2011

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The application(Annexure P-4) filed by the defendants on the same day i.e. 27.08.2010, accompanied with the written statement, for recalling the order and for permission to file the written statement, was dismissed as well by the trial Court, by virtue of impugned order dated 19.07.2011(Annexure P-6) .

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The petitioner-defendant No.1 did not feel satisfied with the impugned orders(Annexures P-2 and P-6) and preferred the present revision petition, invoking the provisions of Article 227 of the Constitution of India.

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At the very outset, in exercise of power under Article 227 of the Constitution of India, I hereby exempt the issuance of notice to the respondentplaintiffs, in order to save them from the expenditure of counsel fees, litigation expenses in this Court and the delay in disposal of the suit, particularly when they can well be compensated with adequate costs in this context.

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After hearing the learned counsel for the petitioner-defendant No.1, going through the record with his valuable help and after deep consideration of the entire matter, to my mind, the instant petition deserves to be partly accepted in this regard.

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As is clear from the impugned orders that, the main ground which appears to have been weighed with the trial Court, to struck off the defence, was that although the defendants appeared in the Court through their counsel on 28.05.2010, but they failed to file the written statement, despite adequate opportunities.

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Ex facie, it may be true, but the trial Court did not record any valid reasons to indicate that the defendants intentionally did not file the written statement, in order to delay the disposal of the suit. Moreover, taking into consideration the nature of litigation between the parties, to me, the trial Court ought to have granted one more opportunity to the defendants, to file the written statement, subject to costs. The filing of written statement is an essential step-inaid, to decide the real controversy between the parties. If the opportunity to file

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Civil Revision No.5072 OF 2011

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the written statement and to contest the case, is not granted, then it will inculcate and perpetuate injustice to the defendants. Moreover, no prejudice is going to be caused to the respondent-plaintiffs, particularly when they can be compensated with adequate costs in this relevant behalf.

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In the light of aforesaid reasons, the instant revision petition is partly accepted. Consequently, the impugned orders are hereby set aside. The trial Court is directed to provide one more opportunity to the defendants, to file their written statement and to join the proceedings of the suit. However, this would be subject to the payment of Rs.5,000/- (Rupees Five Thousand) as costs, to be paid by the defendants to the respondent-plaintiffs. Needless to mention that, the trial Court would ensure the payment of costs personally to the plaintiffs. The payment of costs shall be a condition precedent to the further defence of the case.

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The Registry is directed to send a copy of this order to the trial Court

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forthwith, for strict compliance.

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August 24, 2011 ( M EHINDER S INGH S ULLAR) seema JUDGE

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Civil Revision No.5072 OF 2011

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C.M.No.20409-CII of 2011 in Civil Revision No.5072 of 2011

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Present: Mr.Ashish Gupta, Advocate, for the petitioner.

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********

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Application is allowed as prayed for.

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August 24, 2011 ( M EHINDER S INGH S ULLAR) seema JUDGE

Baljit Singh v. Sadhu Singh & Ors.

Case brief

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Baljit Singh v. Sadhu Singh & Ors.

Case brief

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