CR No. 6780 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 6780 of 2011 (O&M) Date of decision: 7.11.2011 Sham Sunder and others ....Petitioners Versus Satish Khanna ...Respondent CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.Ashish Aggarwal, Advocate for the petitioners ***** Jitendra Chauhan, J.(Oral) The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 9.9.2011, (Annexure P-4), passed by the learned Civil Judge, Junior Division, Amritsar vide which the defence of the petitioners was struck off and for grant of an opportunity to file a written statement to the counter claim filed by the respondent. Brief facts of the case are that the petitioners filed a suit for permanent injunction alognwith the an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure for restraining the respondent from interfering into their peaceful possession over the suit property. Learned counsel contends that the respondent filed the written CR No. 6780 of 2011 (O&M) 2 statement -cum-counter claim to the application on 3.6.2011 and the case was adjourned to 21.7.2011 for filing reply to the counter claim, on which date, the case was transferred to some other Court. On 21.7.2011, at request of the counsel, the same was again adjourned to 9.9.2011. On the said date, the respondent filed an application under Order VIII Rule 1 of the CPC for striking off the defence of the petitioners from filing the reply to his counter claim, on which the learned trial Court without affording any opportunity to the petitioners, struck off the defence of the petitioner erroneously. He further contends that it was on account of the communication gap between the petitioners and their counsel, and the same is not intended to cause any loss to the other party or delay the matter. He further contends that if the petitioners are granted one more opportunity to file written statement to the counter claim, no prejudice will be caused to the other side. I have heard learned counsel for the petitioners and perused the case file. From the perusal of the the zimni orders reproduced in the petition, it appears that in this case, counter claim was filed by the respondent on 31.5.2011 and on the said date, the case was adjourned to 3.6.2011 and subsequently on 21.7.2011 for filing the reply to the counter claim. On 21.7.2011, the case was received by transfer by another Civil Judge, Junior Division and the same was adjourned to 9.9.2011 for the purpose already fixed. On 9.9.2011, a request was made for an adjournment for filing reply to the counter claim, which was declined by the learned trial court vide impugned order Annexure P-4. Though, the petitioners have availed of three effective opportunities, however, keeping in view the fact CR No. 6780 of 2011 (O&M) 3 that non-filing of the reply to the counter claim would materially affect the outcome of the litigation between the parties, therefore, in the larger interest of justice to the litigating parties, one last opportunity is granted to the petitioners to file reply. So far as the fact that due to action of the petitioners, delay has taken place in disposal of the suit, the opposite party can be compensated by way of cost. Resultantly, in view of these facts, the present revision petition is accepted. The impugned order dated 9.9.2011 is set aside. Learned trial Court is directed to grant one opportunity to the petitioners to file written statement to the counter claim filed by the respondent on the date of hearing to be fixed by the learned trial Court. The same shall be subject to payment of ` 10,000/- as costs. 7.11.2011 (JITENDRA CHAUHAN) gsv JUDGE