Partly allowed

Abhishek Anand v. Gurdev Singh

Punjab & Haryana HC13 Sept 2011CR/5451/2011

Case brief

AI extract

What is this about?

In this revision petition under Article 227, the High Court partially accepted the petitioner-defendant's plea that the trial court erred in striking off his defence without granting a further opportunity to file a written statement. The set-asid-impose costs order directed the lower court to allow filing again if costs were paid.

What did the court decide?

Impugned order striking off defence set aside. Trial Court directed to provide one more opportunity to file written statement subject to defendant paying Rs. 5,000 costs to plaintiff.

Abhishek Anand Vs Gurdev Singh — Property and Title | Punjab & Haryana HC (2011)

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Civil Revision No.5451 of 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No.5451 of 2011(O&M)

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Date of Decision:13.09.2011

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Abhishek Anand ......Petitioner

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Versus

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Gurdev Singh .....Respondent

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

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Present: Mr.Pawan Kumar Gupta, Advocate, for the petitioner.

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MEHINDER SINGH SULLAR, J.(oral)

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The epitome of the facts, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the present revision petition and emanating from the record is that Gurdev Singh son of Sucha Singhrespondent-plaintiff(hereinafter to be referred as “the plaintiff”) filed the suit for a decree of permanent injunction, restraining Abhishek Anand son of S.Vinod Anand-petitioner-defendant(for brevity “the defendant”) from interfering and alienating the property in dispute, in any manner.

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As, written statement was not filed within a period of 90 days, therefore, the trial Court struck off the defence of the defendant, by means of impugned order dated 13.08.2011(Annexure P-1).

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Aggrieved by the decision(Annexure P-1) of the trial Court, the petitioner-defendant 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 respondentplaintiff, in order to save him from the expenditure of counsel fees, litigation

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Civil Revision No.5451 of 2011

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expenses in this Court and the delay in disposal of the suit, particularly when he can well be compensated with adequate costs in this regard. Be that as it may, but still he would be at liberty to file the petition to review this order, without accepting the costs, if so desires.

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After hearing the learned counsel for the petitioner, going through the record with his valuable assistance and after deep consideration of the entire matter, to my mind, the instant petition deserves to be partly accepted in this respect.

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As is clear from the impugned order that, the main ground which appears to have been weighed with the trial Court to struck off the defence was that, the defendant put in appearance in the court on 13.05.2011, but he did not file the written statement within a period of 90 days.

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Ex facie, it may be true, but taking into consideration the nature of litigation, to me, the trial Court ought to have granted one more opportunity to the defendant, to file the written statement, subject to payment of costs. The filing of written statement is essential, to decide the real controversy between the parties. If the opportunity to file the written statement and to contest the case is not granted to the defendant, then it will inculcate and perpetuate injustice to his case. In this manner, the trial Court committed a material, procedural irregularity and illegality and the impugned order cannot be maintained in the obtaining circumstances of the case. Moreover, no prejudice is going to be caused to the respondent-plaintiff, particularly when, he can be compensated with adequate costs in this context. 8. In the light of aforesaid reasons, the instant revision petition is partly accepted. Consequently, the impugned order is hereby set aside. The trial Court is directed to provide one more opportunity to the defendant, to file his written statement and to participate in 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 defendant to the plaintiff. Needless to mention that, the trial Court would

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Civil Revision No.5451 of 2011 3

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ensure the payment of costs personally to the plaintiff. The payment of costs would be a condition precedent to the further defence of the case.

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September 13, 2011 ( M EHINDER S INGH S ULLAR) seema JUDGE

Abhishek Anand v. Gurdev Singh

Case brief

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Abhishek Anand v. Gurdev Singh

Case brief

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