Civil Revision No.5747 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5747 of 2011 Date of Decision:20.09.2011 Pankaj Kansal and others ......Petitioners Versus Sudesh Kumar Mahajan and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Puneet Jindal, Advocate, for the petitioners. **** M EHINDER S INGH S ULLAR , J.(oral) The crux of the facts, which needs a necessary mention for a limited purpose of deciding the core controversy involved in the instant revision petition and emanating from the record is that, Sudesh Kumar Mahajan son of Bishamber Dass and Ashwani Joshi son of Ravi Narinder Joshi-respondent Nos.1 and 2- plaintiffs(for brevity “the plaintiffs”) filed the suit for a decree of possession by way of specific performance of the agreement to sell dated 15.12.2005, with a consequential relief of permanent injunction, restraining Pankaj Kansal son of Des Raj and others-petitioners-defendant Nos.1 and 3 to 7 and Usha Rani-proforma respondent No.3-defendant No.2(for short “the defendants) from alienating the property in dispute, in any manner, situated in village Sunet,(known as Kartar Singh Sarabhi Nagar) Tehsil and District Ludhiana. 2. During the pendency of the suit, since the defendants did not file the written statement, so, the plaintiffs moved an application for striking off their defence. The defendants have also filed an application for providing better particulars and production of documents. Civil Revision No.5747 of 2011 2 3. The trial Court struck off the defence of the defendants, by means of impugned order dated 23.08.2011(Annexure P-4), which in substance is as under:- “Now file has been perused which shows that defendants were appearing but they failed to file their written statement for quite a long time. Defendants No.4 and 5 appeared in person on 19.08.2009. Then on 18.10.2010, defendants No.1,3,6 and 7 appeared in person. Then application for better particulars was filed on 24.12.2010 which is quite late after their appearance. Provision is made under the Code of Civil Procedure but it does not mean that it will be used by the defendants as per their own wishes. Defendants No.4 and 5 appeared on 08.09.2009 and this application was moved on 24.12.2010 i.e. after more than one year and three months. Remaining defendants appeared on 18.10.2010 and this application was moved on 24.12.2010 i.e. two months and 6 days. Things cannot be such that after such a long time, it came to the knowledge of these defendants that they are in need of these documents. Filing this application at this point of time shows that when they failed to file written statement in time so this application has been moved. Thus, there is no ground on the basis of which the application can be allowed. Hence, their defence stands struck off.” 4. Aggrieved by the impugned decision(Annexure P-4) of the trial Court, the petitioner-defendants preferred the present revision petition, invoking the provisions of Article 227 of the Constitution of India. 5. At the very outset, in exercise of power under Article 227 of the Constitution of India, I hereby exempt the issuance of notice to respondent-Nos.1 and 2-plaintiffs, in order to save them from the expenditure of counsel fees, litigation expenses in this Court and the delay in disposal of the suit, particularly when they can well be compensated with adequate costs in this respect. Be that as it may, but still they would be at liberty to file the petition to review this order, without accepting the costs, if so desire. 6. After hearing the learned counsel for the petitioners, going through the record with his valuable assistance and after deep consideration of the entire matter, to my mind, the instant petition deserves to be partly accepted in this Civil Revision No.5747 of 2011 3 regard. 7. As is clear from the impugned order that, the main ground which appears to have been weighed with the trial Court to struck off the defence was that, the defendants appeared in the case long time ago, but they did not file their written statement. 8. Ex facie, it may be true, but taking into consideration the nature of litigation, to me, the trial Court ought to have granted one more opportunity to the defendants, to file their written statement, subject to payment of costs. The filing of written statement is essential, to decide the real controversy between the parties. If the opportunity to file the written statement and to contest the case is not granted to the defendants, then it will inculcate and perpetuate injustice to their case. In this manner, the trial Court committed a material, procedural irregularity and illegality and the impugned order cannot be maintained in the obtaining circumstances of the case. Moreover, no prejudice is going to be caused to respondent Nos.1 and 2-plaintiffs, particularly when, they can be compensated with adequate costs in this context. 9. In the light of aforesaid reasons, the instant revision petition is partly accepted. Consequently, the impugned order dated 23.08.2011(Annexure P-4) is hereby set aside. The trial Court is directed to provide one more opportunity to the defendants, to file their written statement and to participate in the proceedings of the suit. However, this would be subject to the payment of Rs.10,000/- (Rupees Ten Thousand) as costs, to be paid by the defendants to the plaintiffs. Needless to mention that, the trial Court would ensure the payment of costs personally to the plaintiffs. The payment of costs would be a condition precedent to the further defence of the case. September 20, 2011 (MEHINDER SINGH SULLAR) seema JUDGE Civil Revision No.5747 of 2011 4 C.M.No.22962-CII of 2011 in Civil Revision No.5747 of 2011 Present: Mr.Puneet Jindal, Advocate, for the petitioners. **** Application is allowed as prayed for. September 20, 2011 (MEHINDER SINGH SULLAR) seema JUDGE