Judgment

Mr. Sanjay Vashisth, J. :-

CM-16099-CII-2023

This is an application, under Rule 3(A)(i), Chapter 6, Part-B, Volume-V, of the HIGH COURT RULES and Orders, seeking leave to appear, act or plead before this Court.

For the reasons mentioned in the application, the same is allowed as prayed for.

CR-5134-2023

1. Present revision petition has been preferred by the petitioners (defendants No.4, 5, 6 & 34) against the impugned order dated 16.02.2023 (P-1), passed by Ld. Civil Judge (Jr. Div.), Bhiwani, whereby, defence of the defendants No.2 to 6, 18 & 34, has been ordered to be struck off.

2. Learned counsel for the petitioners submits that suit for partition and permanent injunction filed by one Bimla Devi (respondent No.1-plaintiff), is pending before the Court of Civil Jude (Jr. Divn.), Bhiwani. In the said suit, defendants No.4, 5, 6 & 34 (petitioners herein) had appeared before the trial Court after coming to know of the proceedings before them. However, the counsel engaged by the petitioners/defendants No.4, 5, 6 & 34, unfortunately, met with an accident, consequently, written statement could not be filed, despite being prepared on time. To support his submission, counsel for the petitioners has also appended a medical certificate dated 02.08.2023, issued by the reputed hospital of the area as Annexure P-4. Further submits that although in the impugned order dated 16.02.2023 (P-1), presence of their counsel is marked, but in fact, he was not present in Court on the said date, as he was on bed rest from 25.01.2023 till 26.02.2023, due to fracture suffered by him in the said accident. Still, vide order dated 16.02.2023 (P-1), defense of petitioners/defendants No.4, 5, 6 & 34, was struck off.

3. Learned counsel for the petitioners further submits that after passing of the impugned order (P-1), case has been adjourned four times, and said suit is still on the appearance stage and plaintiff’s evidence is yet to be recorded. Thus, the suit is still at an initial stage, and the petitioners/defendants No. 4, 5, 6 & 34, deserves one more opportunity to file their written statement, and if no such opportunity is granted to them to file their reply, they will suffer an irreparable loss. Therefore, he requests that if one more opportunity is granted to petitioners, subject to the payment of some cost also, requisite written statement can be filed by the petitioners.

4. Learned counsel for the petitioners also relies upon the order dated 20.05.2022, passed by the Coordinate Bench of this Court in CR-1660-2020, titled as, “ Paro and others vs. Mahindo ”, wherein, in the similar circumstances, to avoid miscarriage of justice, the order of striking off defense was set-aside, and opportunity of filing of written statement was granted. Relevant part of the order dated 20.05.2022, says as under:-

“The provisions of Order 8 Rule 1 of the CPC no doubt are directory in nature, however, at the same time the Courts must exercise their discretion to condone the delay, if any, in filing the written statement after exercising due circumspection and in case there appears to be an attempt on the part of the defendant to engage in dilatory tactics, the Courts should nip the same unhesitatingly.

Adverting to the case in hand, the petitioners were granted four opportunities to file their written statement, however, they failed to do so.

Be that as it may, if the petitioners are not granted one more opportunity to file their written statement, they would suffer irreparable loss which in turn would result in miscarriage of justice. Therefore, for just and proper adjudication of the case, this Court deems it appropriate