The non-filing of the written statement within the stipulated time could not be a ground for striking off the defence, considering the judgments exempting the limitation for filing pleadings.

JUDGMENT

Tushar Rao Gedela, J. (Oral)

[The proceeding has been conducted through Hybrid mode]

1. The petitioners challenge the order dated 17.01.2022 whereby the learned Trial Court had struck off the defence of the petitioners/defendants no.1 and 2 and also proceeded ex parte simultaneously. The petitioners also challenge the order dated 28.04.2022 whereby the learned Trial Court refused to take the written statement of the petitioners/defendants on record on the premise of having already proceeded ex parte vide order dated 17.01.2022.

2. Mr. Jayant Mehta, learned senior counsel appearing on behalf of the petitioners/defendants submits that on 27.10.2021, the summons of the suit were served upon the petitioners/defendants. In accordance with such service, the petitioners/defendants appeared on 01.11.2021 before the learned Trial Court. Vide order dated 01.11.2021, the learned Trial Court had directed the petitioners/defendants to file the written statement within the stipulated time with an advance copy to the other side.

3. The matter was next posted to 17.01.2022 whereby the aforesaid impugned order had been passed.

4. Learned senior counsel appearing for the petitioners/defendants submits that the observations made by learned Trial Court vide order dated 17.01.2022, in that, the petitioners had not filed the written statement despite the lapse of 90 days period from the date of service is incorrect observation and contrary to the facts on record.

5. Learned senior counsel submits that even if the time period as stipulated is calculated from 27.10.2021, the 90 days' period was still not over on the date of passing of the order dated 17.01.2022. On that basis, learned senior counsel submits that the order proceeding ex parte and simultaneously striking off the defence of the petitioners/defendants was not only contrary to the record but also drastic measure undertaken without examining the facts which obtained in the present case.

6. Learned senior counsel also brought attention of this Court to page 186 where the learned Trial Court had passed order dated 28.04.2022 rejecting the written statement sought to be filed by the petitioners/defendants on the basis that the defendants have already been proceeded ex parte.

7. Learned senior counsel submits that the premise of the learned Trial Court that the petitioners/defendants were proceeded ex parte as well as the defence was struck off being the reasons for not taking the written statement on record was itself incorrect inasmuch as the original order dated 17.01.2022 is itself predicated on the observation of incorrect facts.

8. According to learned senior counsel, learned Trial Court had overlooked two crucial and material facts: (i) the fact that on 17.01.2022, 90 days had not lapsed (ii) being ignorant of the judgment of the Hon'ble Supreme Court in Suo Moto WP(C) No. 3/2020 "In Re: Cognizance for Extension of Limitation" as well the judgment in 'Prakash Corporates vs. Dee Vee Projects Limited' reported as AIR 2022 SC 946 whereby the Hon'ble Supreme Court had extended the time for filing pleadings, applications, etc.

9. Learned senior counsel submits that in view of the aforesaid facts and the Supreme Court judgment, the impugned order be set aside with a direction that the written statements be taken on record.

10. Per Contra, Mr. Samrat Nigam, learned counsel appearing on behalf of the respondent would submit that the filing of the present petition is itself an indication of the dilatory tactics adopted by the petitioners/defendants to delay the trial inasmuch as the impugned order is dated 17.01.2022 and exactly after a lapse of one year, the petitioners have filed the instant petition.

11. Learned counsel for the respondent also submits that if one were to test the bonafide of the petitioners, the same would miserably fail for the reason that despite the fact that petitioners were served with summons on 27.10.2021, the respondent did not even attempt to fil