Civil Revision No.5750 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5750 of 2011(O&M) Date of Decision:21.09.2011 Gurwinder Singh and another ......Petitioners Versus Iqbal Chand @ Sonu .....Respondent CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.B.S.Guliani, Advocate, for the petitioners. **** M EHINDER S INGH S ULLAR , J.(oral) The conspectus of the facts, which needs a necessary mention for a limited purpose of deciding the sole controversy involved in the instant revision petition and emanating from the record is that, Iqbal Chand alias Sonu son of Late Satpal-respondent-plaintiff(for brevity “the plaintiff”) filed the suit for a decree of permanent injunction, restraining Gurwinder Singh son of Charan Singh and his wife Rajinder Kaur, Sarpanch-petitioners-defendants(for short “the defendants”) from passing the drain through any portion and diverting the flow of dirty water of the street towards the plot in question. 2. As, written statement was not filed, therefore, the trial Court struck off the defence of the defendants, by virtue of impugned order dated 21.05.2011 (Annexure P-1). 3. Aggrieved by the decision(Annexure P-1) of the trial Court, the petitioner-defendants preferred the present revision petition, invoking the provisions of Article 227 of the Constitution of India. 4. At the very outset, in exercise of power under Article 227 of the Civil Revision No.5750 of 2011 2 Constitution of India, I hereby exempt the issuance of notice to the respondent- plaintiff, in order to save him from the expenditure of counsel fees, litigation expenses in this Court and the delay in disposal of the suit, particularly when he can well be compensated with adequate costs in this respect. Be that as it may, but still he would be at liberty to file the petition to review this order, without accepting the costs, if so desires. 5. After hearing the learned counsel for the petitioners, going through the record with his valuable help and after considering the entire matter deeply, to my mind, the instant petition deserves to be partly accepted in this context. 6. 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 have failed to file the written statement, despite availing sufficient opportunities. 7. Ex facie, it may be true, but the defendants alone cannot be blamed in this regard. The bare perusal of the interim(zimni) orders reproduced in the Grounds of Revision by the petitioners, would reveal that on 08.05.2010, Rajinder Singh, Advocate, appeared and filed memo of appearance on behalf of the defendants and the case was adjourned to 11.10.2010, to file the written statement and reply to the stay application. But the file was taken-up on 07.10.2010, as the Presiding Officer was supposed to go to attend the training at Judicial Academy, Chandigarh. Consequently, the case was adjourned to 13.12.2010. Again on that day, since the Presiding Officer was on earned leave from 01.12.2010 to 15.01.2011, so, the file was put up before the Duty Sub-Judge and ultimately, the case was adjourned to 14.03.2011. On that day, the Presiding Officer was on leave and the case was again adjourned to 21.05.2011, on which date, the impugned order was passed. That means, adequate effective opportunity was not granted to the defendants to file the written statement. 8. Moreover, taking into consideration the nature of litigation between Civil Revision No.5750 of 2011 3 the parties, the trial Court ought to have granted one more opportunity to the defendants, to file the 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, then it will inculcate and perpetuate injustice to the case of the defendants. 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. Above all, no prejudice is going to be caused to the respondent-plaintiff, particularly when, he can be compensated with adequate costs in this relevant behalf. 9. In the light of aforesaid reasons, the instant revision petition is partly accepted. Consequently, the impugned order dated 21.05.2011(Annexure P-1) is hereby set aside. The trial Court is directed to provide one more opportunity to the defendants, to file their written statement. However, this would be subject to the payment of Rs.5,000/- (Rupees Five Thousand) as costs, to be paid by the defendants to the plaintiff. Needless to mention that, the trial Court would ensure the payment of costs personally to the plaintiff. September 21, 2011 (MEHINDER SINGH SULLAR) seema JUDGE