Ashok Kumar & Ors. v. Ram Singh

40 WITH + CM(M)129/2020 and CM APPL.4455/2020,4456/2020 MOHINI&QRS Petitioners versus RAM SINGH Respondents Through: None. 43 and + CM(M)133/2020and CM APPL.4463/2020,4464/2020 KAMLA &ORS Petitioners versus RAM SINGPI Respondents Through: None. CORAM: JUSTICE PRATHIBA M.SINGH ORDER % 04.02.2020

1. Advance copies of the petitions are stated to be served upon the Respondent's/Plaintiffs counsel by hand.The endorsement is also available CM(M)125/2020. 129/2020,133/2020 Page]of[3] 2020:DHC:3874 on the Courtrecord.None appears forthe Respondents.

2. The present petitions challenge the impugned order dated 30'^ November,2019 by which the defence ofthe Petitioners herein/Defendants in the suit (hereinafter 'Tenants) has been struck off. The background is that a suit for possession and permanent injunction was filed by the Respondent/Plaintiff — Ram Singh (hereinafter 'Landlord') against the Tenants. Summons were issued in the suit in August, 2019 and the Petitioners were served in August, 2019. On 27^*^ September, 2019 which was the returnable date, the Presiding Officer was on leave, however, the Tenants had prepared an application under Order VII Rule IICPC and the same was to be filed before the Court on the said date. On the next date,i.e. 30^*^ November,2019,an application under Order VIII Rule 1 CPC was filed by the Landlord. Considering the said application, since the written statement(s) were not on record and only an application under Order VII Rule 11 CPC was filed by the Tenants, the Trial Court has struck off the defence ofthe Tenants.

3. Ld. counsel for the Tenants submits that in fact the affidavit in the application under Order VII Rule 11 CPC was attested on September, 2019 and there was no intention to delay the matter.It is his submission that the period of 120 days has not lapsed and no opportunity was granted to reply to the application under Order VIII Rule 1 CPC which was in fact presented on the same date,when the impugned order was passed.

4. The Court has perused the two orders i.e. 27* September, 2019 and 30* November,2019. Admittedly,the Tenants were served on 19* August, 2019 and a perusal of the Order VII Rule 11 CPC application shows that defences were intended to be raised by the Tenants. The affidavit in support CM(M)125/2020, 129/2020, 133/2020 Page2of[3] ofthe application is also attested as of27"^ September,2019.Thus,it cannot be said that Tenants were not diligent in pursuing the matter. For whatever reasons the Tenants were under the impression that the application under Order VII Rule 11 CPC would be decided first, before filing ofthe written statement. Considering that the period of 120 days was yet to be exhausted from the service ofthe summons,subject to payment ofRs.5,000/- costs to the Landlord in each of the matters, the Tenants are permitted to file the written statement(s)within one week with advance copies to the Landlord.

5. The costs shall be tendered on or before the next date before the Id. Trial Court i.e. 10^*^ February,2020. Subject to the costs being tendered,the written statement shall be taken on record and the suit shall be proceeded with in accordance with law.

6. The petitions with all pending applications are disposed of.Dasti.

PRATHIBA M.SINGH,J. FEBRUARY 04,2020 MR/4.5'.