AMAR SINGH SHARMA Vs. ANAND KUMAR SHARMA

JUDGEMENT

(1.) The present petition is filed by the petitioners (defendants No. 1 to 5 in the court below), assailing an order dated 10.12.2009 passed by the trial court, dismissing the application of the petitioners for extension of time to file the written statement.

(2.) In a nutshell, the facts of the case are that a suit for permanent and mandatory injunction was preferred by the respondent (plaintiff in the court below) against the petitioners (defendants No. 1 to 5 in the court below) on 24.01.2009. Summons were issued in the suit on 24.01.2009. As per the petitioners, they were served with the summons in the suit, on 28/29.03.2009. However, a perusal of the order sheets shows that the defendants No. 1, 3, 5 and 6 (petitioners No. 1, 3 and 5 herein) were duly served much earlier and had appeared in Court on 10.02.2009. On 01.04.2009, counsel for all the defendants/petitioners herein entered appearance and filed his Vakalatanama on their behalf. On the same date, an application was filed by them under Section 10 of the CPC and the matter was adjourned to 03.06.2009. However, the written statement was not filed by the petitioners/defendants within a period of 30 days from the date of service of the summons on them. As a result, on 03.06.2009, the defence of the petitioners/defendants was struck off. On the very next date, i.e., on 04.06.2009, the petitioners filed an application, seeking recall of the order dated 03.06.2009 and permission to file the written statement. The said application came to be dismissed by the impugned order dated 10.12.2009, with the observation that the petitioners had not been able to show any apparent error on the face of the record and had failed to give any adequate satisfactory reason for condonation of delay in filing the written statement. Aggrieved by the aforesaid order, the petitioners have filed the present petition.

(3.) Counsel for the petitioners/defendants states that the written statement was filed belatedly on 04.06.2009 as the respondent/plaintiff did not furnish the documents, enclosed with the plaint and mentioned in the order dated 10.02.2009, till as late as on 01.04.2009. The aforesaid submission made on behalf of the petitioners/defendants is disputed by the counsel for the respondent/plaintiff, who insists that the documents in question were furnished to the petitioners/defendants on the very same date, i.e., on 10.02.2009. However, he concedes that he does not have the proof of having served the documents on the petitioners on 10.02.2009 itself.