Ajay Singh v. Roop Singh & Anr.

1. This petition impugns the order dated 19.10.2022 and 09.02.2023 passed by the ADJ, West District, Tis Hazari Court, Delhi (‘Trial Court’) in casebearingSuitNo.729/2020titledas “Roop Singhv. SardarSingh& Anr” whereby, the Trial Court dismissed the application under Order 47 Rule 1 Code of Civil Procedure (‘CPC’) seeking review of the order dated 14.12.2021.

1.1. The Petitioneris defendant No. 1 and RespondentNo. 1 is theplaintiff in the civil suit.

2. The suit has been filed by the plaintiff for declaration, possession and permanent injunction of the property bearing no. 106 VPO Mundka, measuring 126 sq. yds. (21/54) out of Khasra no.370 situated within old Lal Dora (1908-09)of Village and abadiMundka(‘subject property’). A perusal of the record shows that the Petitioner herein was proceeded ex-parte on 14.12.2021.

3. Upon anapplication beingfiled by thePetitioner herein, theapplication was allowed by the Trial Court vide order dated 04.08.2022, subject to the Petitioner herein makingpaymentofcost ofRs. 5,000/-to RespondentNo. 1. By thesameorder, thePetitioner was alsodirectedtofilehis written statement within a period of 30 days with an advance copy to the plaintiff.

4. The Petitioner herein however, defaulted in complying with the order dated 04.08.2022inasmuch as neither thewrittenstatementwas filed nor the costs were tendered to the plaintiff. Since no cost were paid and neither a written statement was filed, the Trial Court vide order dated 19.10.2022 proceeded ex-parte against the Petitioner herein.

5. The Petitioner thereafter made attempts and tendered the cost of Rs. 5,000/-to thecounselfor theplaintiff, however, thesaid costswererepaidby RespondentNo. 1 i.e. the Plaintiff on 08.12.2022 to the Petitioner herein.

6. In these circumstances, the Petitioner herein filed an application seekingrecalloftheorder proceeding ex-parteagainst him. However, thesaid application was dismissed.

7. The learned counsel for the Petitioner states that he is willing to pay compensatory cost to the plaintiff for the delay cause in filing the written statement and tendering the cost.

8. None appears on behalf of the Respondent No. 1, despite advance service.

9. Ms. RashmiSharma, Advocatehasenteredappearanceon behalfofthe RespondentNo. 2. Learned counselfor Respondent No. 2 statesthatshehas been served with anincompletecopy ofthepaperbookandshe, therefore, has no submissions to make on the issues arising in the present petition.

10. This Court has perused thepetitionand consideredthesubmissions of the Petitioner.

11. In the facts of the present case, the Petitioner has no doubt been negligent in conducting the proceedings and not complying with the orders passed by the Trial Court.

12. It is evident from the records that the Trial Court gave successive opportunities to the Petitioner herein to file his written statement, however, the Petitioner has failed to avail the said opportunities.

13. In the opinion of this Court the impugned orders passed by the Trial Court does notsuffer from any infirmity, however,sincethematter is pending before theTrial Courtand is at thestage of arguments, this Courtdeems that it would subserve the interest of justice if the defence of the Petitioner are considered and theclaim in thesuitaredecided onmerits.It willalso preclude arguments of non-consideration of the defence of the Petitioner and save multiplicity of proceedings.

14. In this regard, it would be appropriate to refer to the case of Randhir Singh v. Urvashi Suri passed by the learned Single Judge of this Court decided in CM (M) 717/2023 dated 04.05.2023 after taking note of the judgments of the Supreme Court and this Court, while considering the issue of closing the right of the defendant to file written statement, held that the effort of the Court is always that disputes should ordinarily be decided on merits. The relevant portion of the said judgment reads as under: