JUDGMENT :

(Prayer: This application filed under Order XIV Rule 8 of the O.S Rules R/w. Order IX Rule 13 of C.P.C., prayed to condone the delay of 59 days in filing the written statement.)

1. This application has been filed by the defendants in the suit, seeking for a direction to condone the delay of 59 days in filing the written statement.

2. In the affidavit filed in support of the said application, it had been stated that the suit summons had been received on 14.07.2018 (sic). It was further stated that after obtaining ex-parte injunction, the plaintiffs had not complied the stipulations under Order XXXIX Rule 3 of the Code of Civil Procedure, 1908. It was stated that there were criminal cases registered as against the defendants and thereafter a Memorandum of Understanding had been executed on 16.02.2019. But however, the same was signed under duress. It was stated that the petitioners were not able to file the written statement within time. It was stated that under these circumstances, there was a delay of 59 days in filing the written statement.

3. A counter affidavit had been filed by the 1st respondent/1st plaintiff. In the counter affidavit, it had been stated that the counsel for the defendants had filed their valakat in the suit on 30.07.2018 itself. It was stated that the suit had been adjourned to various subsequent dates. It was stated that the Memorandum of Understanding dated 16.02.2019 had been entered into. The veracity of the same was directed to be tested by adducing evidence. The 1st applicant herein had tendered evidence and was also cross-examined. Thereafter, enquiry on that issue stood adjourned time and again for letting in evidence of the 2nd applicant. However, that did not fructify even though a Commission was appointed to record evidence. Finally, on 21.01.2020, it was represented that the time period under the Memorandum of Understanding had itself expired on 15.11.2019 and therefore, reliance was not being placed on the same.

4. With respect to the delay, the contention that the applicants/defendants was served only on 14.07.2018 (sic), was not correct. The reasons for the delay namely, that there were complaints and counter complaints before the Police authorities would not be adequate reasons for condoning the delay in filing the written statement. It was stated that the averment that the suit summons was served on 16.07.2019 was factually incorrect.

5. It was further stated that regardless of service of suit summons, since the counsel had entered appearance on 30.07.2018, it is to be presumed that the applicants/defendants have full knowledge of the suit proceedings and therefore had to file their written statement within 120 days from the date of filing the vakalat. It was also stated that the vakalat was filed in the suit and not in the Application. It was also stated that compliance under Order XXXIX Rule 3(a) of the Code of Civil Procedure had been satisfied and it was for that reason that vakalat was also filed on 30.07.2018. It was therefore stated that the application should be dismissed.

6. A rejoinder had been filed on behalf of the applicants/defendants, wherein, it had been reiterated that there had been no compliance of the stipulations under Order XXXIX Rule 3 of the Code of Civil Procedure. It was stated that the Court summons was not at all served to the defendants. It was stated that the counsel for the plaintiffs, through their letter, served the copies to the counsel for the defendants on 25.07.2019 only. It was also stated that this was done owing to the directions by the learned Master in his proceedings dated 13.08.2019. It was stated that service of summons was completed and recorded by the learned Master by proceedings dated 13.08.2019. It was therefore stated that the period for filing of written statement commenced only from the date of service of the suit summons. It was again reiterated that the written statement had been filed only with a delay of 59 days and adequate