Punjab-Haryana High Court
Zakir Hussain vs Abdul And Others on 12 August, 2011
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Civil Revision No.4882 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Revision No.4882 of 2011
Date of Decision:12.08.2011
Zakir Hussain ......Petitioner
Versus
Abdul and others .....Respondents
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.
Present: Mr.Salim Ahmed, Advocate,
for the petitioner.
****
MEHINDER SINGH SULLAR, J.(oral) Tersenessly, the facts, culminating in the commencement, relevant for disposal of the present revision petition and emanating from the record, are that Abdul, Jabbar and Rajjak sons of Rehman-respondent-plaintiffs(for brevity "the plaintiffs") filed the suit against Zakir Hussain son of Parmal-petitioner-defendant (for short "the defendant") for a decree of possession with consequential relief of permanent injunction, in respect to the property in dispute. On 24.03.2011, counsel for the defendant appeared, filed his power of attorney in the court and sought time for filing the reply to the stay application. The case was adjourned to 07.04.2011 (Annexure P-3). Thereafter, the case was transferred to some other court. Ultimately, the case was slated for 26.07.2011, on which date, written statement was not filed by the defendant and the trial Court passed the following order:-
"Present: Sh.Shaukat Ali, counsel for plaintiff.
Sh.Javed Khan, counsel for defendant.
**** Written statement not filed. Further adjournment requested, which is opposed by learned counsel for the plaintiff. Stipulated period of 90 days already been expired. Hence, defence of defendant is hereby struck off. The case is adjourned to 8.10.2011 for evidence of the plaintiff."Civil Revision No.4882 of 2011 2
and struck off his defence.
2. The petitioner-defendant did not feel satisfied with the impugned order and preferred the present revision petition, invoking the provisions of Article 227 of the Constitution of India.
3. 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 respondent- plaintiffs, 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 be compensated with adequate costs in this respect.
4. After hearing the learned counsel for the petitioner, going through the record with his valuable assistance and after considering the entire matter deeply, to my mind, the instant petition deserves to be partly accepted in this context.
5. As is evident from the record that the indicated civil suit was filed on 11.03.2011 and notice was issued to the defendant for 16.03.2011(Annexure P-1). Notice issued for securing the presence of the defendant was received back with the report that he is out of station. The defendant was ordered to be summoned through Munadi for 24.03.2011(Annexure P-2). On that day, Javed Khan, Advocate, appeared on behalf of the defendant, filed his power of attorney and the case was adjourned to 07.04.2011 for filing the written statement(Annexure P-3). On 07.04.2011, the case was transferred to some other court and it was adjourned to 09.05.2011 for filing the written statement(Annexure P-4). On that day, the position remained the same and the case was again adjourned to 26.07.2011, on which date, the impugned order was passed.
6. As is apparent from the record that the petitioner was served for the first time on 19.03.2011. Thereafter, the case was transferred to other court. In this manner, the petitioner-defendant has a plausible explanation and it cannot possibly be saith that he has intentionally delayed the filing of written statement Civil Revision No.4882 of 2011 3 under the present set of circumstances.
7. Taking into consideration the nature of litigation between the parties, to me, the trial Court ought to have granted one opportunity to the defendant, to file the written statement, subject to 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, then it will inculcate and perpetuate injustice to the defendant. Moreover, no prejudice is going to be caused to the respondent-plaintiffs, particularly when they can be compensated with adequate costs in this relevant connection.
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 opportunity to the petitioner-defendant, to file his written statement. However, this would be subject to the payment of Rs.5,000/- (Rupees Five Thousand) as costs, to be paid by the petitioner-defendant 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.
The Registry is directed to send a copy of this order to the trial Court forthwith, for strict compliance.
August 12, 2011 (MEHINDER SINGH SULLAR) seema JUDGE