Civil Revision No.5811 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5811 of 2011 Date of Decision:22.09.2011 Pritam Kaur ......Petitioner Versus Balbir Kaur and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Sandeep Singh Deol, Advocate, for the petitioner. **** M EHINDER S INGH S ULLAR , J.(oral) The contour of the facts, which requires to be noticed for the limited purpose of deciding the core controversy, involved in the instant revision petition and emanating from the record is that, Balbir Kaur widow of Kuldip Singh and others-respondent Nos.1 to 8-plaintiffs(for brevity “the plaintiffs”) filed the suit on 23.04.2005, for a decree of declaration to the effect that plaintiff Nos.1 to 4 are owner and in possession in respect of half share, whereas plaintiff Nos.5 to 8 are owner in respect of remaining half share, with a consequential relief of permanent injunction, restraining Pritam Kaur wife of Gurmukh Singh-petitioner-defendant No.6, Chanan Kaur widow of Gurnam Singh and other proforma respondents- defendants(for short “the defendants”), from interfering in their lawful possession of the land in dispute. 2. The petitioner-defendant No.6 was duly served and appeared in the court through her counsel. Since, written statement was not filed, so her defence was struck off by the trial Court as back as on 29.04.2008. However, defendant Nos.3 and 4 contested the suit. 3. As soon as, the Court almost concluded the trial and fixed the case Civil Revision No.5811 of 2011 2 for rebuttal evidence and arguments, meanwhile, petitioner-defendant No.6 moved an application, for permission to file the written statement and to participate in the suit on the ground that, when she was in the United States, her attorney did not file the written statement. On reaching India, she came to know with respect to the non-filing of written statement by her. On the basis of aforesaid allegations, petitioner-defendant No.6 filed the application for permission to file the written statement and to participate in the proceedings, in the manner depicted hereinabove. 4. The plaintiffs refuted the prayer of petitioner-defendant No.6, filed the reply stoutly denying all the allegations contained in the application and prayed for its dismissal. 5. The trial Court dismissed the application, by means of impugned order dated 06.09.2011, the operative part of which is as follows: “Now, going through the record, I find that defendant No.6 put her appearance through her Counsel on 21.2.2006 and case was adjourned for filing of written statement for 26.4.2006. On 26.4.2006, Sh.A.S.Randhawa, Advocate filed power of attorney on behalf of respondent No.6 and further case was adjourned for 24.7.2006 for filing of written statement. On the fixed date, again the written statement was not filed by defendant No.6, whereas written statement was filed on behalf of defendant No.1. The case was adjourned for filing of written statement for 23.8.2006. On 23.8.2006, again no written statement was filed and case remained pending for 25.9.2006, 11.12.2006, 15.2.2007, 10.4.2007, 31.5.2007, 28.7.2007, 22.9.2007, 30.10.2007 and ultimately up to 29.4.2008 but defendant No.6 did not file any written statement. So, the order dated 29.4.2008 was passed by Sh.D.K.Choudhary, then Civil Judge (Junior Division), Tarn Taran striking off defence of defendant No.6 for not filing the written statement. Later on, after completing service of other defendants, issues in this case were framed on 14.1.2009. The plaintiffs led evidence and after conclusion of evidence of plaintiffs, defendants also concluded the evidence on 2.2.2010 and when the case was fixed for rebuttal evidence and arguments, defendant No.6, who was represented by Sh.A.S.Randhawa, Advocate regularly, woke up from the slumber and filed the instant Civil Revision No.5811 of 2011 3 application. Now, seeing the previous and post impugned order, conduct of defendant No.6, it will reflect how negligent was defendant No.6 in pursuing the litigation. Whether it was fault of the party herself or it was fault of Counsel for defendant No.6, but ultimately it is clear that provisions of Order 8 CPC were utterly violated. The period of 30 days is afforded to the party to file written statement but it is extendable up to 90 days but in the instant case, learned Counsel for defendant No.6 put up appearance on 26.4.2006 and for full two years, they did not bother to file written statement. Even after this period of 2 years up to year 2010 from 29.4.2008 they remained negligent and slept over the matter and did not take any step to join the proceedings and ultimately when the case was fixed for rebuttal evidence and arguments and was on the verge of its disposal then instant application was filed. Now, in case this application is allowed then the case will take U-turn and it will be a de novo trial. The plaintiffs and other defendants will suffer a loss which cannot be in any way compensated in terms of money. The plaintiffs have examined four witnesses and after that defendants also examined their witnesses. All the witnesses have to be recalled for their examination. It is clear that absence of defendant No.6 was intentional with a view to harass the plaintiff. This is the general tendency of the litigants who wants to avoid the disposal of litigation for some ulterior motive. It is not a case that defendant No.6 was not served or sufficient opportunities were not granted to her for filing written statement. Two years period is not a small period and I find that my learned predecessor was lenient enough by not striking off defence on expiry of 90 days and waited up to two years and similarly, defendant No.6 did not bother to join the proceedings shortly after impugned order was passed and waited for two years. Accordingly, I find that conduct of defendant No.6 is highly condemnable. Accordingly, I do not find any merits in the instant application and same is declined.” 6. Aggrieved by the decision of the trial Court, petitioner-defendant No.6 preferred the present revision petition, invoking the provisions of Article 227 of the Constitution of India. 7. Having heard the learned counsel for the petitioner, having gone through the record with his valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant petition in this context. Civil Revision No.5811 of 2011 4 8. Ex facie, the argument of the learned counsel that, since a great prejudice will be caused to the case of the petitioner, so, the trial Court committed a legal mistake in dismissing her application, is not only devoid of merit but misconceived as well. 9. As is evident from the record that the plaintiffs filed the indicated suit on 23.04.2005. The petitioner was duly served and appeared in the court through her counsel on 21.02.2006 and the case was adjourned for filing of the written statement. Since, written statement was not filed, so, her defence was struck off on 29.04.2008(i.e. after a period of three years). Thereafter, she slept over the matter and now, application for recalling of the order dated 29.04.2008 was filed by her. 10. Having completed all the codal formalities, the court almost concluded the trial and slated the case for rebuttal evidence, if any, and for arguments. That means, petitioner-defendant No.6 has intentionally stayed away from the suit for more than six years and now filed the present application, in order to delay the disposal of the case, which has already matured. To me, if petitioner- defendant No.6 is permitted to file the written statement, to re-open the case, at this stage, on such frivolous ground then there will be no end of anything and it will amount to starting de novo trial at the expenses of the plaintiffs, without any fault on their(plaintiffs) part, which is not legally permissible. 11. Meaning thereby, the trial Court has recorded the cogent grounds in this relevant connection and rightly negate the prayer of petitioner-defendant No.6. Such order, containing the valid reasons, cannot legally be set aside, in exercise of limited revisional jurisdiction of this Court, as contemplated under Article 227 of the Constitution of India, unless the same is perverse and without jurisdiction. Since, no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner, so, the impugned order is hereby maintained in the obtaining circumstances of the case. Civil Revision No.5811 of 2011 5 12. In the light of aforesaid reasons, as there is no merit, therefore, the instant revision petition is hereby dismissed as such. September 22, 2011 (MEHINDER SINGH SULLAR) seema JUDGE Civil Revision No.5811 of 2011 6 C.M.Nos.23242-23243-CII of 2011 in Civil Revision No.5811 of 2011 Present: Mr.Sandeep Singh Deol, Advocate, for the petitioner. **** Applications are allowed as prayed for. September 22, 2011 (MEHINDER SINGH SULLAR) seema JUDGE