IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1756 of 2010 (M/S) Laxman Singh Bisth and others ..… Petitioners Versus Navdeep Nagalia ..… Respondent Shri Pawan Mishra, Advocate for the petitioners. Shri Neeraj Garg, Advocate for the respondent. Hon’ble Tarun Agarwala, J. Heard Shri Pawan Mishra, the learned counsel for the petitioners and Shri Neeraj Garg, the learned counsel for the respondents. A suit for cancellation of the sale deed and for injunction was instituted on 3rd May, 2010 in which notice was issued in the suit as well as on the application for grant of temporary injunction. The defendant was served notice on 7th May, 2010. On 12th May, 2010, the Court fixed 15th May, 2010 by which time the defendant was directed to file objection to the injunction application and the court fixed 17th May, 2010 for the disposal of the injunction application. The objection was not filed on the date fixed and, on 17th May, 2010, the defendant filed an application seeking further time to file the objection alleging therein that the advocate of the defendant could not prepare the objection. This application was rejected by the trial court and 24th May, 2010 was fixed for the disposal of the injunction application. On 24th May, 2010, the defendant filed the objection alongwith an application to recall the order dated 17th May, 2010 and further praying that the objection may be kept on record. The ground alleged for recall is that the advocates were on strike and, therefore, the objection could not be filed. The said application came up for disposal on 19th July, 2010 on which date, the application was rejected. The objection filed by the defendant was 2 directed to be taken off the record. The petitioners, being aggrieved by the said order, has filed the present writ petition. The court has perused the order and have heard the learned counsel for the parties. The court finds that on the same date, i.e. 19th May, 2010, the trial court had further rejected the application of the defendant to keep the written statement on record. That order of 19th July, 2010 has been set aside by this Court by an order dated 18/08/2010, passed in Writ Petition No. 1457 of 2010 (M/S). Having heard the learned counsel for the parties, the Court finds that the trial court has taken a technical view and has rejected the application on frivolous and baseless grounds. Even though, the ground raised by the defendant was not correct, nonetheless, the trial court should have seen that there had not been such a substantial delay to defeat the ends of justice. If there was an urgency in the matter, the Court while rejecting the application seeking time to file objection on 17th May, 2010, could have proceeded straight away and decided the injunction application. But the trial court did not do so and fixed 24th May, 2010 for disposal of the injunction application. This is an indication that there was no urgency in the injunction application. Consequently, when the objection was filed on 24th May, 2010, the Court should have taken the application on record on payment of cost which would have compensated the plaintiff and the Court should thereafter have decided the injunction application on merit. But the Court has not done so and proceeded to go into the merits on the grounds taken by the defendant, namely, as to whether the advocates were on strike or not and as to whether the advocate had time to prepare the objection or not. The court further finds that on 12th May, 2010, only three days’ time was allowed to file objection. In any case, the objection was filed on 24th May, 2010 within three weeks from the date of the institution of the suit. The 3 court is of the opinion that there was no delay at the behest of the defendant in filing the objection and non filing of the objection, on account of unforeseen events, was not in the hands of the defendant. It is settled law that if the objection could not be filed on the ground that the advocate could not prepare it and there was a fault on the part of the advocate, the fault committed by the advocate could not be fastened upon the litigating party as has been held by the Supreme Court in a catena of decisions, namely, Secretary, Department of Horticulture, Chandigarh and Another Vs. Raghu Raj, 2009 AIR (SC) 514. In the light of the aforesaid, the Court is of the opinion that the rules of procedure, namely, the Code of Civil Procedure are handmaid of justice and the entire purpose is that the parties should file their objections and that the application is decided on merits and that every effort should be made by the Court to intimate that the matter is decided on merit rather than non-suiting the party on a technicality. In the light of the aforesaid, the impugned order cannot be sustained and is quashed. The objection filed by the petitioners is directed to be taken on record on payment of cost of Rs.1,000/- which the defendant will deposit before the trial court within two weeks from today. The injunction application will be decided thereafter on merits after hearing the parties. In view of the aforesaid, the writ petition is allowed. The impugned order is quashed. (Tarun Agarwala, J.) Dated 21st December, 2010 Shiv