The court has discretionary power to condone the delay in filing the written statement, subject to a stricter yardstick for non-commercial suits, and the defendant should be given an opportunity to establish the plea that the SPA holder was not authorized to accept the summons.

JUDGMENT

Jyoti Singh, J. (Oral)--By this revision petition, Petitioner assails the impugned order dated 24.11.2021 by which his application under Order VIII Rule 1 CPC has been dismissed by the Trial Court. Respondent herein is the Plaintiff before the Trial Court and Petitioner herein is Defendant No.1 (hereinafter referred to as the `Defendant') and parties are hereinafter referred to by their litigating status before the Trial Court.

2. Facts necessary for adjudicating the present petition are in a narrow compass. Plaintiff filed a suit for partition, possession and declaration with respect to plot ad-measuring 1000 sq. yards bearing No. RZG-128 situated in Khasra No. 77/13/18, Nihal Vihar, Nangloi, Delhi, allegedly purchased before 1992 jointly by the parties, who are real brothers. Both the Plaintiff and Defendant are NRIs, settled in Norway with their respective families.

3. As per the case set out in the present petition, parties to the suit resolved their family disputes amicably with respect to all properties in the presence of their lawyers/Attorney and executed an agreement dated 12.11.1992, whereby joint ownership in the suit property came to an end and the property came to the exclusive share of the Defendant. In the year 2007-08, it is alleged that some local mischievous elements encroached upon the suit property being an open land and the Defendant had to fight several litigations on this count, with no assistance from the Plaintiff. Defendant sold the suit property in January, 2013 in favour of Mr. Rajesh and Mr. Muktesh whereafter the property changed several hands but none of the owners were impleaded as party to the suit. It is averred that in order to grab the suit property, Plaintiff filed the present suit, after a long period of over two decades, despite knowing that the suit property had fallen to the share of the Defendant. The suit is not only barred by limitation but suffers from several other legal infirmities.

4. Petitioner pleads that the summons in the suit were served on the Special Power of Attorney (SPA) holder, appointed by the Defendant to look after some other pending matters and he was never served personally and thus, the Defendant was not aware of the filing or pendency of the present suit even till January, 2019. The Attorney, on his own engaged a counsel, who filed a vakalatnama on 01.11.2018 and assured to supply the complete set of paper book of the suit soon, much before the date of hearing i.e. 25.02.2019. Copy of the plaint and documents were made available to the Defendant in February, 2019, by one Mr. Amit Khurana and Defendant informed them that he would be coming to India soon. Counsel prepared an informal written statement in February, 2019 but the same was finalized on 27.03.2019, after consultation with the Defendant, along with an application under Order VIII Rule 1 CPC. Written statement could not be filed before 06.05.2019 due to non-entry in the to-do list of the counsel and there was a delay on this count for which the counsel apologised to the Defendant. In the meantime, as the Attorney was not looking after the pending litigation properly, the SPA was cancelled on 09.01.2019.

5. An application was also filed on behalf of the Defendant under Order VIII Rule 1 CPC praying for taking the written statement on record by condoning the delay of 240 days, in the interest of justice. Reply was filed to the application by the Plaintiff on 25.09.2019 and finally, the application was dismissed by the impugned order on 24.11.2021 and the defence of the Defendant was struck off. Defendant filed a review of the order dated 24.11.2021, but the same was also dismissed on 02.03.2022.

6. Counsel for the Defendant contends that the impugned order striking off the defence of the Defendant is very harsh and against the law on the subject. Trial Court failed to exercise its jurisdiction for just cause without appreciating that Defendant is an NRI residing in Norway with his family and s