IMPORTANT POINT
The court reinforced that the obligation to file a written statement timely is critical, and mere claims of non-service of summons do not justify excessive delays.

JUDGMENT :

(Ajoy Kumar Mukherjee, J.) :

1. Plaintiff / petitioner herein filed a suit being T.S. No. 567 of 2005 against the defendants/opposite parties herein for specific performance of contract allegedly entered into by and between plaintiff and defendant no.1, mandatory injunction and for other reliefs. Along with the plaint the petitioner herein also filed application for injunction under order XXXIX rule 1 and 2. By an order dated April 13, 2005 the court below passed interim order restraining defendant from interfering with the peaceful possession and enjoyment of the suit property by the petitioner and/or transferring and/or dealing with, encumbering the suit premises. The defendant no.1 entered appearance in the suit on April 25, 2005. On September, 20, 2005 the opposite party/defendant filed an application under order VII rule 11 of the Code of Civil Procedure seeking rejection of the plaint. On the same day the said opposite party no. 1 also filed an application under order XXXIX rule 4 of the Code praying for vacating the interim order of injunction passed by the court on 13 April, 2005.

2. Thereafter by the order dated May, 15, 2006 the application filed by opposite party no. 1 under order VII rule 11 of the Code was dismissed on contest. By another order dated July, 6 2006 the application filed by defendant no.1/opposite party no. 1, herein was taken up for hearing in presence of both side and after contested hearing defendant’s said application was allowed in part and the order of injunction passed vide order no., 3 dated April 13, 2005 was directed to be continued till disposal of the injunction petition, subject to depositing Rs.2,50,000/-by July, 31st 2006 towards arrear rent/compensation, for occupying the suit premises since 2002.

3. It is submitted on behalf of the petitioner that opposite party no. 1 regularly appeared before the court below and prior to July 18, 2017, the opposite party no.1 never alleged that the summons were not served upon him. The record of the suit also does not suggest that the summon issued to opposite party no.1 was ever returned as unserved. It is further alleged that all on a sudden on July, 18, 2017, the opposite party filed an application under order IX rule 5 of the Code interalia alleging for the first that no summon was served upon the opposite party and prayed for dismissal of the suit on that ground. Said application was disposed of by an order dated June 20, 2018, observing that the opposite party no. 1 herein had already entered appearance on April 25, 2005 and had filed applications in the suit. However learned court below was not satisfied with the manner in which summon was sought to be served upon the defendant no.2 and accordingly dismissed the suit as against the defendant no.2.

4. Being aggrieved by that order the petitioner herein preferred an application under Article 227 of the Constitution of India, before this Court being C.O. No. 2064 of 2018, but said application was rejected by this Court by an order dated 12th March, 2019 observing that no summon was served upon defendant no. 2 and thereby affirmed the order of the court below and the said order was passed in presence of opposite party no.1.

5. Since no written statement was filed by the opposite party no.1, the plaintiff/petitioner filed an application for posting the suit for ex-parte hearing on August, 20, 2019. Thereafter on September, 30th, 2019, the opposite party no.1 filed an application under section 151 of the Code, seeking condonation of delay in filing written statement. It is alleged that save and except the allegation that no summon was served upon the opposite party no.1, he had not given any other explanation as to what caused the delay in filing the written statement. The petitioner herein as plaintiff filed written objection to the said application and petitioner contended that thereafter, on enquiry petitioner for the first time on August 21, 2021 came to know that during lockdown peri