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* IN THE fflGH COURT OF DELHI AT NEW DELHI
+ C.R.P. 77/2008
SUYASHA VOHRA & ANR Petitioners
Through: Petitioner No.2 in person.
+ C.R.P. 77/2008
SUYASHA VOHRA & ANR Petitioners
Through: Petitioner No.2 in person.
VERSUS
RAJIB K. SENGUPTA & ANR Respondents
Through: Mr. B.L. Mehta, Advocate for R-1.
Mr. Ranjit Singh, Advocate for R-2.
Through: Mr. B.L. Mehta, Advocate for R-1.
Mr. Ranjit Singh, Advocate for R-2.
CORAM:
HON'BLE MR. JUSTICE P.K. BHASIN
% 29.09.2011
C.R.P. 77/2008
1 have heard petitioner No.2, who represents petitioner no. 1 also, as well as counsel for respondents no.l and 2.
The petitioners are aggrieved by an order passed by the learned trial Court in the suit for injunction filed by the respondent no.l herein whereby their defence was struck off far not filing the written statement within the prescribed time of 30 days and then within the extended time of90 days.
Petitioner no.2 has argued that their written statement was very much readyto be filed on 27.09.2004 on which date their counsel had appeared and on the same day he expired. Thereafter, the petitioners remained ignorant of the fact whether written statement was actually filed or not by their counsel. However, their new counsel inspected therecord and came to know thatwritten statement had actually notbeen filed by their deceased counsel. In these circumstances, it is submitted, the trial Court should havepermittedthe petitionersto place on recordtheir writtenstatementso that suit could be decided on merits.
C.R.P. 77/2008 page1 of2
2011:DHC:9176 y
Learned counsel for respondent No.1-plaintiff, on the other hand, submits that no written statement was ever filed by the petitioners' counsel despite the fact that sufficient time had been granted for that purpose and the only intention of the petitioners has been to prolong the litigation andthat is evident from the factthat it was morethan three years after the death of their counsel that they came out with a plea that that counsel had not filed th(; written statement and so the learned trial Court was, in these circumstances, fully justified in not accepting the petitioners' written statement and the plaintiffs application under Order VIII CPC for striking off the defence of the petitioners herein was rightly allowed.
Learned counsel for respondent no.2-DDA has nothing to say in the matter and obviously so since it had also failed to file the written statement within the period of 90 days but the same was taken on record much thereafter by the trial courtand that too by rejecting the prayer ofthe respondent no.1-plaintifffor striking off its defence also made in the same applicton in which prayer for striking offthe defence ofDDA was also made.
I am, however, of the view that this revision petition deserves to succeed only on the ground that the trial Court while accepting the written statement of respondent no.2-
DDA on record, even thougli it was filed beyond the maximum provided period of 90 days, declined the same concession to the petitioners herein. There was no justification
V for the trial Court to have passed different orders in respect ofdifferent defendants by condoning the default of one (DDA) in filing of written statement and declining to condone the similar default ofanother (the petitioners).
The impugned order passed by the trial Court striking oflf the defence of the petitioners is accordingly set aside. The petitioners-defendants shall now file their written statement on 4"^ November, 2011, the date which is stated to be already fixed before the trial Court. It is, however, made clear that no further date shall be granted to them under any circumstances and in case they fail to file the written statement this time their defence would remain struck off. This petition stands disposed ofacc(^dingly.
P.K. BHASIN,J
SEPTEMBER 29, 2011
C.R.P. 77/2008 pdg^2 of2
2011:DHC:9176
% 29.09.2011
C.R.P. 77/2008
1 have heard petitioner No.2, who represents petitioner no. 1 also, as well as counsel for respondents no.l and 2.
The petitioners are aggrieved by an order passed by the learned trial Court in the suit for injunction filed by the respondent no.l herein whereby their defence was struck off far not filing the written statement within the prescribed time of 30 days and then within the extended time of90 days.
Petitioner no.2 has argued that their written statement was very much readyto be filed on 27.09.2004 on which date their counsel had appeared and on the same day he expired. Thereafter, the petitioners remained ignorant of the fact whether written statement was actually filed or not by their counsel. However, their new counsel inspected therecord and came to know thatwritten statement had actually notbeen filed by their deceased counsel. In these circumstances, it is submitted, the trial Court should havepermittedthe petitionersto place on recordtheir writtenstatementso that suit could be decided on merits.
C.R.P. 77/2008 page1 of2
2011:DHC:9176 y
Learned counsel for respondent No.1-plaintiff, on the other hand, submits that no written statement was ever filed by the petitioners' counsel despite the fact that sufficient time had been granted for that purpose and the only intention of the petitioners has been to prolong the litigation andthat is evident from the factthat it was morethan three years after the death of their counsel that they came out with a plea that that counsel had not filed th(; written statement and so the learned trial Court was, in these circumstances, fully justified in not accepting the petitioners' written statement and the plaintiffs application under Order VIII CPC for striking off the defence of the petitioners herein was rightly allowed.
Learned counsel for respondent no.2-DDA has nothing to say in the matter and obviously so since it had also failed to file the written statement within the period of 90 days but the same was taken on record much thereafter by the trial courtand that too by rejecting the prayer ofthe respondent no.1-plaintifffor striking off its defence also made in the same applicton in which prayer for striking offthe defence ofDDA was also made.
I am, however, of the view that this revision petition deserves to succeed only on the ground that the trial Court while accepting the written statement of respondent no.2-
DDA on record, even thougli it was filed beyond the maximum provided period of 90 days, declined the same concession to the petitioners herein. There was no justification
V for the trial Court to have passed different orders in respect ofdifferent defendants by condoning the default of one (DDA) in filing of written statement and declining to condone the similar default ofanother (the petitioners).
The impugned order passed by the trial Court striking oflf the defence of the petitioners is accordingly set aside. The petitioners-defendants shall now file their written statement on 4"^ November, 2011, the date which is stated to be already fixed before the trial Court. It is, however, made clear that no further date shall be granted to them under any circumstances and in case they fail to file the written statement this time their defence would remain struck off. This petition stands disposed ofacc(^dingly.
P.K. BHASIN,J
SEPTEMBER 29, 2011
C.R.P. 77/2008 pdg^2 of2
2011:DHC:9176
JUDGMENT