Partly allowed

Gurbhajnik Singh v. Gurdev Singh

Punjab & Haryana HC13 Sept 2011CR/5552/2011

Case brief

AI extract

What is this about?

Revision petition challenging order striking off defendant's defence for non-filing written statement. High Court exempted notice, set aside impugned order, directed refund of defence money and grant of further opportunity to contest pending payment of Rs.5,000 costs.

What did the court decide?

Impugned order set aside; one more opportunity granted to defendant to file written statement subject to payment of Rs.5,000 costs to plaintiff.

Gurbhajnik Singh Vs Gurdev Singh — Civil Procedure and Limitation | Punjab & Haryana HC (2011)

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Civil Revision No.5552 of 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No.5552 of 2011

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Date of Decision:13.09.2011

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

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MEHINDER SINGH SULLAR, J.(oral)

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The conspectus of the facts, culminating in the commencement, relevant for disposal of the present revision petition and emanating from the record is that Gurdev Singh son of Sucha Singh-respondent-plaintiff(hereinafter to be referred as “the plaintiff”) filed the suit for a decree of permanent injunction, restraining Gurbhajnik Singh son of Avtar Singh-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 virtue 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 expenses in this Court and the delay in disposal of the suit, particularly when he can well be compensated with adequate costs in this respect. Be that as it may, but

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Civil Revision No.5552 of 2011

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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 help and after considering the entire matter deeply, to my mind, the instant petition deserves to be partly accepted in this context. 6. 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 regard.

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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 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 seema

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( M EHINDER S INGH S ULLAR) JUDGE

Gurbhajnik Singh v. Gurdev Singh

Case brief

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Gurbhajnik Singh v. Gurdev Singh

Case brief

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