CR No. 1231 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No. 1231 of 2011 (O&M) Date of decision:- 08.03.2011 Subhash Chander Gabha ....Petitioner Vs. Sukhdev Singh ....Respondent CORAM: HON'BLE MR. JUSTICE A.N. JINDAL ****** Present:- Mr. Tarundeep Kumar, Advocate, for the petitioner. A.N. JINDAL, J (ORAL) This petition assails the order dated 26.02.2009 (Annexure P-1) passed by the trial Court, whereby the defence of the defendant-petitioner (hereinafter referred to as 'the petitioner') was struck off and order dated 19.11.2010 (Annexure P-2) whereby the application of the petitioner for setting aside the above said order, was dismissed. Vide order dated 26.02.2009, the trial Court had struck off the defence of the petitioner without proceeding him ex-parte. However, the Court dismissed the application of the petitioner for withdrawal of the order dated 26.02.2009. The said application was dismissed merely on the ground that the Court could not review its own order. Before I proceed to decide about the legality of the impugned order dated 26.02.2009, it requires to be reproduced as under:- CR No. 1231 of 2011 (O&M) 2 “Today the case was fixed for filing written statement by defendant. Perusal of the file shows that Memo of appearance was filed by Advocate Sh. Inderjit Singh on 07.11.2008 on behalf of defendant, thereafter neither the POA (power of attorney) nor the written statement filed by the defendant. It seems that defendant is not interested in contesting the case. The period of 90 days is already over since appearance of defendant, so the defence of the defendant is hereby struck off. Now the Pws be produced on 31.03.2009.” The aforesaid order qua striking off the defence appears to be a non-speaking and docket order and the Court was not armless to recall such orders, provided reasonable cause is shown. Actually, the order is palpably wrong at its face. On the day the defence of the petitioner was struck off, he was not present. The counsel had filed only memo of appearance and no power of attorney was filed. In the absence of any power of attorney, it cannot be presumed, if the defendant had engaged him as counsel. The Counsel did not plead no instruction, therefore, in such circumstances, the Court could pass no other order, except to proceed against the defendant exparte, but had no power to strike off the defence. The defence could be struck off only if the party appearing is not complying with such orders as entailing striking off the defence. Since the defendant did not appear before the Court, the question of striking off the defence would not arise. At this stage, the petitioner has shown reasonable cause for not appearing in the Court on 26.02.2009 and engaging the counsel, which being plausible is accepted. In any CR No. 1231 of 2011 (O&M) 3 case, it would also be expedient in the interest of justice and to provide opportunity to the petitioner of being heard and to decide the case on merits, however the delay, if any, caused by the defendant could be compensated by costs. At the same time, the order dated 26.02.2009 being patently erroneous, deserves to be reversed. In the circumstances of the case, this petition is accepted. The impugned order dated 26.02.2009 (Annexure P-1) is set aside. The petitioner is permitted to file written statement, subject to payment of Rs.5,000/- as costs. This petition is disposed of without issuing notice to the respondent with a view to impart complete justice to the parties and to save the huge expenses, which may be incurred by the respondent as also in order to avoid unnecessary delay in adjudication of the matter. Still, if dissatisfied, the respondent may move to this Court for recalling this order. (A.N.JINDAL) 08th of March, 2011 JUDGE ajp