Civil Revision No. 1498 of 2010 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 1498 of 2010 (O&M) Date of decision: 1.4.2010 Davinder Kumar .. Petitioner v. Hardeep Singh .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Amit Jhanji, Advocate for the petitioner. Mr. G. L. Bajaj, Advocate for the respondent. .. Rajesh Bindal J. The defendant has approached this Court challenging the order dated 4.11.2009, passed by the learned court below, whereby his defence has been struck off under Order 10 Rule 4 CPC. Briefly, the facts are that the respondent-plaintiff filed a suit for possession on the basis of title and for recovery of Rs. 3,60,000/- on account of use and occupation @ Rs. 10,000/- per month from 1.6.2006 to 31.5.2009. It is in the aforesaid suit that defence of the petitioner-defendant was struck off vide impugned order. Learned counsel for the petitioner submitted that on 23.9.2009 after the filing of replication by the respondent-plaintiff, the case was adjourned to 4.11.2009 for recording the statements of the parties and the parties were directed to be present in person on the next date. On the next date of hearing, in the absence of the petitioner, his defence was struck off. It was submitted that under the provisions of Order 10 Rule 1 CPC, the court was firstly required to put the questions to the pleader or to direct the party to appear in person. In the present case, in fact on 23.9.2009, when the case was adjourned to 4.11.2009, the next date was wrongly noted as 14.11.2009. In support of the plea, even photo copy of the diary and brief of the counsel have also been produced. He submitted that there was no refusal by the petitioner or his counsel to answer the questions to be put by the court. Merely because a wrong date was noted, the petitioner should not be made to suffer on that account. He submitted that on the next date of hearing, the Civil Revision No. 1498 of 2010 [2] petitioner will appear and answer all the queries of the court. On the other hand, learned counsel for the respondent submitted that the learned court below had not gone wrong in striking off the defence of the petitioner on account of his absence in the court on the date fixed, which necessarily means that there was no intention to answer the queries of the court. He further submitted that the plea that the date was wrongly noted is an after- thought, as no effective steps were taken immediately even after the date noted by the counsel for the petitioner had passed. The effort of the petitioner is merely to delay the proceedings. After hearing learned counsel for the parties, in my opinion, the case set up by the petitioner is meritorious. Without going into the legality of the question as to whether under Order 10 Rule 4 CPC, the defence of the petitioner could have been struck off or not, under the circumstances of the case, in my opinion, the mere fact that the petitioner could not appear in court on the date fixed for the reason of noting of wrong date is sufficient to grant him relief in the present case. This fact is prima facie established from the photo copies of the diary and the brief placed on record. The petitioner was not going to gain anything by not appearing on the date fixed knowing well that his absence would invite an adverse order from the court in terms of law. In view of the aforesaid facts, the impugned order dated 4.11.2009 is quashed. However, the same shall be subject to payment of Rs. 5,000/- as costs to the respondent-plaintiff. The petitioner shall now appear before the court below on the date of hearing to be fixed on 6.4.2010, which is stated to be the next date now. The petition stands disposed of accordingly. (Rajesh Bindal) Judge 1.4.2010 mk